Summary judgment is decided on admissible evidence, not on the pleadings or on counsel’s characterisation. Understanding what the court may consider governs how the record is built during discovery.
Acceptable material includes deposition testimony, answers to interrogatories, admissions, affidavits or declarations made on personal knowledge, authenticated documents, and matters judicially noticed.
Affidavits must show personal knowledge, set out facts admissible in evidence, and show the affiant is competent to testify. An affidavit reciting what the company believes, or what a colleague reported, is struck.
Authentication. Documents attached to a motion must be authenticated, usually through a deposition or a custodian declaration. Producing a document in discovery generally authenticates it as against the producing party, which is a practical shortcut worth remembering.
The sham affidavit rule. A party cannot create a fact issue with an affidavit contradicting its own clear prior deposition testimony without explanation.
Hearsay. Material need not be in admissible form at the motion stage in many courts, provided it could be presented in admissible form at trial. The safer practice is to present it properly the first time.
Building for the motion means taking the depositions that lock in the concessions and authenticate the exhibits, rather than discovering at briefing that the key document has no sponsor.