Updated August 24, 2020
Massachusetts Rule of Civil Procedure 56(c) lists the type of evidence on which a party seeking summary judgment may rely:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
With regard to pleadings, the moving party may not rely on the allegations of his or her own pleadings. However a party seeking summary judgment may rely on allegations contained in the opposing party’s pleadings G.L. c. 231, § 87 (“In any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them.”). A motion for summary judgment may also be based on facts set forth in the moving party’s pleadings and conceded in the opposing party’s pleadings. In the Superior Court, the Court will also take as admitted facts which are set forth in the moving party’s statement of material facts (“Statement of Facts”) and which the opposing party has not adequately denied.
A court may also consider matters subject to judicial notice, concessions made by counsel on the record, testimony received in court (whether in the case at issue or in a former trial), and, if appropriate, facts gleaned from the documents relied on by the parties. This list is not exhaustive.
Mass. R. Civ. P. 56(e) sets forth the requirements for affidavits:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. (Emphasis added).
Bare assertions of belief are inadequate for summary judgment purposes. So are bare assertions, conclusions, and assumptions of unobserved facts. Expressions of belief do not rise to the personal knowledge required by Rule 56(e). Accordingly, affidavits or portions thereof made on information and belief, as opposed to personal knowledge, are to be disregarded in considering a motion for summary judgment.
Affidavit information must embody admissible evidence. Therefore, affidavits are not competent evidence to prove the truth of the hearsay statements they contain unless they come within some established exception to the hearsay rule or come within some statutory provision. Any documents attached to and incorporated in an affidavit must also be admissible.
If an affidavit refers to another document or some portion thereof, sworn or certified copies of the document must be submitted with the affidavit. Rule 56(e).
A motion to strike is the proper procedural device for raising the insufficiency in an affidavit submitted in opposition to a motion for summary judgment. Where no such motion is filed, a court retains discretion to ignore any deficiency and consider the affidavit.
It should be noted that a party cannot defeat a motion for summary judgment by submitting an affidavit which contradicts that party’s own earlier sworn statements (e.g. at a deposition).