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What Constitutes Admissible Evidence

Under Rule 56?

Nevada law provides requires that all fact presented to a court by motion must be by sworn testimony.  Further, “[a]ffidavits/declarations must contain only factual, evidentiary matter, conform to the requirements of NRCP 56(e), and avoid mere general conclusions or argument.”  EDCR 2.21(c).  NRCP 56(e) requires “[s]upporting 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.”

The first requirement of Rule 56(e) is that the sworn testimony must be made upon personal knowledge.  See generally Saka v. Sahara–Nevada Corp., 92 Nev. 703, 705, 558 P.2d 535, 536 (1976) (recognizing that affidavits must be based on “the affiant’s personal knowledge, and there must be an affirmative showing of his competency to testify to them” (as cited by Las Vegas Convention & Visitors Auth. v. Miller, 124 Nev. 669, 687, 191 P.3d 1138, 1150 (2008)). A witness is only competent to testify to a fact if there is evidence that she has personal knowledge of the matter.  NRS 50.025(l)(a); see also Bennett v. State, 281 P.3d 1154 (Nev. 2009). A person only has personal knowledge of a fact that she has “personally observed.”  Bennett v. State, 281 P.3d 1154 (Nev. 2009) (quoting State v. Vaughn, 101 Wash.2d 604, 682 P.2d 878, 882 (Wash.1984); cf. Lane v. District Court, 104 Nev. 427, 446, 760 P.2d 1245, 1257 (1988) (noting that the witness was incompetent to testify because she was not present at the time in question)).

By incorporating the Rule 56(e) standard, the Rule’s authors and the courts distinguish circumstances where facts may be presented in motions before the court only by personal knowledge with other circumstances where one may testify based on belief.  Williams v. Clark Cnty. Dist. Attorney, 118 Nev. 473, 480, 50 P.3d 536, 540 n.9  (2002) (City of Santa Cruz v. Municipal Court, 49 Cal.3d 74, 260 Cal.Rptr. 520, 776 P.2d 222, 230 (1989) (acknowledging that the legislature may expressly authorize the use of affidavits based on information and belief or may require affidavits based on personal knowledge). Compare NRS 31.330 (providing that affidavit charging a garnishee with liability may be made upon information and belief), with NRCP 56(e) (stating that affidavits supporting or opposing a summary judgment motion shall be made on personal knowledge)).”

Testimony about one’s belief without personal knowledge is insufficient under the Rule 56(e) standard, and is therefore insufficient to qualify under the Nevada meet and confer reporting standard.  See Coblentz v. Hotel Employees & Rest. Employees Union Welfare Fund, 112 Nev. 1161, 1172, 925 P.2d 496, 502 (1996).  In fact, “a district court’s reliance upon an affidavit which does not comply with [Rule 56(e)] may constitute reversible error.”  See Havas v. Hughes Estate, 98 Nev. 172, 173, 643 P.2d 1220, 1221 (1982) (quoting Daugherty v. Wabash Life Ins. Co., 87 Nev. 32, 482 P.2d 814 (1971); cf. State of Washington v. Maricopa County, 143 F.2d 871 (9th Cir. 1944)).

Further, hearsay statements are, of course, inadmissible under Rule 56(e) or any other evidentiary standard.  NRS 51.065; see also Moore v. United States, 429 U.S. 20, 21-22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976) (per curiam); Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913).  Further, mere conclusions rather than factual statements are inadmissible.  See EDCR 2.21(c); see also Gunlord Corp. v. Bozzano, 95 Nev. 243, 245, 591 P.2d 1149, 1150 (1979).

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.