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 | # ]
|