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"to the best of my knowledge..." | 661 comments | Create New Account
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"... to the best of my knowledge"
Authored by: Anonymous on Thursday, March 28 2013 @ 06:52 PM EDT

I don't know what the patent statute requires, but affidavits or unsworn declarations under penalty of perjury don't cut it in U.S. federal courts if the form of attestation is limited by phrases such as "... to the best of my knowledge."

I append an excerpt from an aging winning brief I wrote that resulted in a dozen or so unsworn declarations being stricken from the record by the court. When resubmitted in properly attested form, the statements made in the declarations had been substantially altered in a manner favoring us, suggesting that the declarants were unwilling to sign them when the "to the best of my knowledge and belief" escape hatch was removed. (We went on to win the case on our own motion for summary judgment because the defendants' declarations in the subsequently altered form could not demonstrate a genuine dispute over any material facts.)

--- Paul E. "Marbux" Merrell, J.D.


Every affidavit and answer to interrogatories supporting Federal Defendants' motion for summary judgment is improperly attested in the following form:

Pursuant to 28 U.S.C. sec. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
(Emphasis added.) As further explained below, "knowledge and belief" is no different from "information and belief," a form of attestation uniformly rejected by the courts.

In a ruling dated October 13, 1987, Oregon Federal District Judge Owen Panner held that declarations attested in this form are insufficient to support a summary judgment motion.1

The problem with affidavits executed in such a form is that they fail the "personal knowledge" standard of Rule 56(e). Londrigan v. Federal Bureau of Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981) (when statements in affidavits are not based upon personal knowledge, trial court errs in not granting motion to strike); see also Camfield Tires v. Michelin Tire Corp., 719 F.2d 1361, 1367 (8th Cir. 1983) ("a summary judgment motion must be based upon the personal knowledge of the affiant; information and belief is insufficient") (citations omitted).

In fact, Plaintiffs have been unable to find a single published case decision in which "information and belief" affidavits were permitted, despite objection,2 to form the basis for summary judgment.

  1. THIS CIRCUIT DOES NOT ALLOW DEFICIENT AFFIDAVITS

The Ninth Circuit held, in Wallace v. Chappel, 661 F.2d 729, 737 (9th Cir. 1981), that assertions based solely on information or belief are insufficient to withstand a motion for summary judgment. That holding was based in part upon Automatic Radio Manufacturing Co. v. Hazeltine Research, 329 U.S. 827, 831 (1950), where the Court held that such assertions can not support a motion for summary judgment. See also Long v. Bureau of Economic Analysis, 646 F.2d 1310, 1321 (1981) ("[c]onclusory affidavits that do not affirmatively show personal knowledge of 'specific facts' are insufficient"); Coca-Cola Co. v. Overland, 692 F.2d 1250, 1254-55 (9th Cir. 1982) (affidavits must be based upon personal knowledge before they are entitled to any weight at all); Cermetek v. Butler Avpak, 573 F.2d 1370, 1377 (9th Cir. 1978) (facts alleged upon "understanding," upon "belief," or upon "information and belief" are insufficient).

All of Defendants' affidavits and answers to interrogatories fail this standard of personal knowledge.

  2. DEFENSE DOCUMENTS ARE NOT PROPERLY ATTESTED

The form of affirmation used in Defendants' filings purports to rely upon 28 U.S.C. § 1746. That statute, however, does not allow unsworn declarations to be attested "to the best of my knowledge and belief." Instead, under the statute's plain language the declaration must "substantially" comply with the form given by Congress; i.e., the declarant must state that his or her statement unequivocally "is true and correct." Nothing in section 1746 relieves the declarant from Rule 56(e)'s requirement of personal knowledge.3

Because every statement (including obvious opinion and hearsay) in every defense affidavit and answer to interrogatories is ascribed only to "knowledge and belief," the affiants' use of the word "knowledge" can not be interpreted to mean only "personal" knowledge. The form attested ("knowledge and belief") applies equally to all statements made --- including those obviously based on hearsay, on opinion, and on mere belief --- unless the reader somehow were able to apply different definitions of the same phrase to different statements in the affidavits.

It is thus impossible to distinguish affiants' personal knowledge from their hearsay, their opinion, their mere beliefs, or their other sources of information. For purposes of the affiants' submission to the penalty of perjury, every factual statement is qualified by the phrase, "to the best of my knowledge and belief."

That conclusion is unavoidable because the phrase "knowledge and belief" encompasses far more than "personal knowledge," which is the standard of Rule 56(e).

There are many forms of "knowledge," from "personal" to "constructive" to "hearsay." The overriding characteristic of "personal knowledge" is that it is based upon personal observation. The more generalized "knowledge" can come from a variety of sources, including hearsay or opinion of others and can even be inferred --- correctly or incorrectly --- from vague or ambiguous facts.

Therefore, because Defendants' affiants base their statements upon "knowledge and belief," they may be relying upon hearsay or opinion or even basing their facts upon something as amorphous as their individual beliefs. Consequently, it is impossible to determine which of the affiants' statements are based upon personal knowledge and which are based upon impermissible belief, hearsay, or opinion.4
 
Because the defense affiants' "knowledge and belief" encompasses both obvious hearsay and other information, their "affidavits" are the hopelessly vague "information and belief" type of statements that invariably have been rejected by the courts.



1 Judge Panner's ruling was in the case of Van Strum v. EPA, Civil No. 87-6031-E (D. Oregon). Plaintiffs request that this Court take judicial notice of this ruling, which is attached as Plaintiffs' Exhibit 1.

2 Only where the opposing party has not objected to such affidavits may the court consider them. See e.g., Community Savings & Loan Ass'n. v. Federal Home Loan Bank Board, 443 F. Supp. 927 (D. Wis. 1978), vacated on other grounds, 600 F.2d 681.

3 The sparse legislative history of Section 1746 gives no indication that Congress intended to relieve declarants from the Rule 56 requirement of personal knowledge. If anything, that history suggests that Congress intended reasonably strict compliance with the form given in the statute. See attached page from H. Rep. 94-1616, accompanying P.L. 94- 549, at 2; reprinted in 1976 U.S. Code Cong. & Admin. News 5644, 5645 ("If the document is executed within the United States, it must be subscribed to as follows [then quoting statutory language]") (emphasis added) (omitting the word "substantially" found in the enacted version).

4 Plaintiffs' concurrent response to Federal Defendants' motion for summary judgment demonstrates that many statements in Defendants' affidavits are genuinely disputed. It is thus critical to know whether any given statement in defendants' declarations is based upon personal knowledge or is based only upon belief. Restated, when an affiant limits his submission to the penalty of perjury by stating that he did something "to the best of his knowledge and belief," is he saying he is positive he did it, or is he saying he believes he did it but isn't sure? Unless such ambiguity is recognized and excluded, Section 1746 declarations lack the requisite solemnity and specificity to substitute for the oath made upon personal knowledge, the very purpose of 28 U.S.C. § 1746.

[ Reply to This | Parent | # ]

"to the best of my knowledge..."
Authored by: Anonymous on Friday, March 29 2013 @ 10:54 AM EDT
Also, the best used car salesman is the one that knows nothing about a cars
mechanical workings and conditions. All his cars are good ones in his mind. If
it's red and it shines, it's worth more.

[ Reply to This | Parent | # ]

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