The opinion of the court was delivered by: Lewis A. Kaplan, District Judge
This is an action by Kenneth Carroll and members of his family for, among other things, alleged fraud and negligent misrepresentation in the inducement of their participation in an allegedly abusive tax shelter. The action has been resolved with respect to all defendants except Chenery Associates, Inc., Chenery Management, Inc. and Sussex Financial Services, Inc. (collectively, "Chenery"). Chenery, which allegedly was a promoter of the tax shelter scheme in which the plaintiffs "invested," has moved for summary judgment dismissing the complaint. It argues, inter alia, that it made no actionable misrepresentations to plaintiffs.
Plaintiffs' opposition to the motion relies on the contention, among others, that Chenery sent two letters to plaintiffs in which it represented that it had retained two prominent New York law firms to advise on federal tax issues but failed to disclose the identities of the law firms or the fact that they had acted as promoters of the tax shelter, thus precluding plaintiffs from relying on their opinions to avoid penalties.*fn1 Plaintiffs did not produce the originals of the alleged letters despite Chenery's request, explaining that they did not have them.*fn2
Chenery moves to exclude the copies of the two purported letters proffered by plaintiffs on the ground that the copies are unreliable, that plaintiffs have failed to adduce sufficient evidence to permit a finding that they are authentic, and that the best evidence rule forecloses receipt of the copies in evidence in view of the existence of genuine questions as to the authenticity of the originals.*fn3
The two documents relied upon by plaintiffs purport to be copies of letters on Chenery Associates letterhead, signed by Chenery's principal Roy E. Hahn, and dated November 28 and December 10, 2001.*fn4 They were submitted as attachments to the affidavit of plaintiffs' counsel, who described them as "true and correct cop[ies] of . . . letter[s] dated November 28, 2001 [and December 10, 2001] from Chenery Associates, Inc. to Kenneth Carroll, which w[ere] produced by Plaintiffs . . . and marked as [exhibits] at the deposition of Mr. Carroll on January 17, 2007."*fn5 While the Court assumes that plaintiffs' counsel has personal knowledge that the exhibits to his affidavit -- the purported copies -- were produced by the plaintiffs and marked as exhibits at the Carroll deposition, his affidavit does not show that he is competent to testify that the documents in fact are true and correct copies of letters actually prepared by Chenery Associates, Inc. and actually sent to Kenneth Carroll. Indeed, it does not even claim that counsel or his client ever has seen the originals. The most that properly may be said is that counsel's affidavit would permit the inference that his client gave him the papers attached to his affidavit and, perhaps, that his client told him that these papers were received by him from Chenery Associates. But plaintiffs have provided no affidavit or declaration of Mr. Carroll as to whether the papers in fact were received by him from Chenery Associates, or for that matter, anyone else.
Mr. Hahn, whose name appears in cursive script at the foot of the purported copy of each letter, was questioned about each at his deposition. When shown the copy of the purported letter marked as Exhibit 23, Mr. Hahn stated that he had never before seen it and had not signed it.*fn6 He said the apparent signature did not look like his own because it appeared "larger than life," and he denied possessing a signature facsimile stamp.*fn7 He testified further that his Chenery associate, Ms. May Kwan, would not have signed his name to a letter if he had not read and approved it first and that myCFO, another participant in the transaction, did not have access to Chenery letterhead.*fn8 He stated also that the letter did not appear to have been printed on Chenery's letterhead because the footer containing Chenery's address was not printed in the font or type size used by the company.*fn9
Mr. Hahn testified further that he "[c]learly did not draft th[e] letter" because it contained at least one phrase he never used.*fn10 Moreover, he noted that the letter described a Bank Mandiri transaction as a "current opportunity" as of December 10, 2001, but said that the Bank Mandiri transaction had "crashed" on August 12, 2001. He testified that he was "100 percent sure [he] would have not written th[e] paragraph representing" that transaction as still being available in December because the transaction had been "an especially painful undertaking."*fn11 Finally, Mr. Hahn testified that he did not know of the arrangement described at paragraph 3 of the letter as having been made by Chenery.*fn12
Mr. Hahn stated also that he had not drafted Exhibit 11 either and, furthermore, that he had been in China on the date that appears on that document.*fn13 He indicated that, although the signature resembled his, it was, like the signature on Exhibit 23, larger than his normal signature.*fn14
He stated also that the letterhead used for pages 2 through 5 was not Chenery's letterhead. Moreover, he pointed out that the letterhead was internally inconsistent, as pages 2 through 5 did not match page 1.*fn15
FEDERAL RULE OF CIVIL PROCEDURE 56(e) provides that "[s]upporting and opposing affidavits [on summary judgment motions] 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."*fn16 Were there any doubt as to its meaning, it long ago was eliminated by a parade of decisions ...