15 Day 15 15 Day 15

15.1 Hunter Readings 15.1 Hunter Readings

Read the following pages of The Power of Procedure by Nan D. Hunter.

Read pages:

75-89
101-117

These pages contain the discovery tools as they were used in Jones v. Clinton.

15.2 Rules 15.2 Rules

Read the following Federal Rules of Civil Procedure. You can access them via the internet or the supplemental handout provided on Canvas.

Fed. R. Civ. P. 56

15.3 Background on Rule 56, Summary Judgment, and Burdens 15.3 Background on Rule 56, Summary Judgment, and Burdens

Rule 56 stipulates that judges may provide summary judgment - ruling for a party as a matter of law. This is permitted when the case presents no genuine issues of material fact, the presence of which would warrant a trial.

The Rule has its supporters and critics. Supporters of a wider use of summary judgment usually base their opinions on efficiency considerations, arguing that its use is necessary to avoid wasteful and unnecessary trials. They contend that limiting the use of Rule 56 (or, at least, limiting its use too much) might encourage trials aimed at harassing opposing parties or at forcing unfair settlements to avoid such trials.

Critics respond that cabining use of summary judgment is necessary to protect the right to a jury trial, which would be compromised in a world where judges play jurors to decide a broader range of cases on summary judgment. For such critics, efficiency does not overcome this broad principle of providing litigants with their day in court.

For a time, the Supreme Court supported a more limited use of summary judgment in line with this latter view. However, in the mid-late 1980s, the Supreme Court pivoted, deciding three cases that appeared to encourage a broadened use of summary judgment. One of those was Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, which you will read shortly.

Before you do so, keep in mind what summary judgment tracks! In short, summary judgment tracks two different burdens: the burden of production and the burden of persuasion.

A burden of production asks: who bears the burden of producing sufficient evidence such that, if unrebutted, that evidence would allow a reasonable jury to decide in its favor, with respect to issue X? Usually, a plaintiff bears the burden of production on each element of a theory of relief, and a defendant bears the burden of production only if the plaintiff has met its burden. Burdens of production can shift. Sometimes that shift depends on whether the opposing party has met its burden of production. Sometimes, the burden of production depends on who has filed a motion (for, say, summary judgment).

A burden of persuasion asks: who loses if the evidence is in equipoise (is equal) on some issue? For instance, if there is no evidence for a specific issue, the party who bore the burden of persuasion on that issue would lose. The law assigns burdens of persuasion categorically, and they never move. For example, a plaintiff bears the burden of persuasion on each element of a cause of action that the plaintiff is asserting. For a negligence claim, they would bear the burden of persuasion for each of duty, breach, causation, and damages. If they fail to meet the burden of persuasion with respect to any of those elements, the claimant would lose on the negligence claim. Likewise, the defendant would bear the burden of persuasion with respect to affirmative defenses, such as contributory or comparative negligence.

As you read Justice Brennan’s dissent in Celotex, pay attention to their explanation of how summary judgment tracks these burdens.

15.4 Celotex Corp. v. Catrett 15.4 Celotex Corp. v. Catrett

Pay particularly close attention to Justice Brennan's dissent.

477 U.S. 317 (1986)

CELOTEX CORP.
v.
CATRETT, ADMINISTRATRIX OF THE ESTATE OF CATRETT

No. 85-198.

Supreme Court of United States.

Argued April 1, 1986Decided June 25, 1986

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[318] Leland S. Van Koten argued the cause for petitioner. With him on the briefs were H. Emslie Parks and Drake C. Zaharris.

Paul March Smith argued the cause for respondent. With him on the brief were Joseph N. Onek, Joel I. Klein, James F. Green, and Peter T. Enslein.^[1]

[319] JUSTICE REHNQUIST delivered the opinion of the Court.

The United States District Court for the District of Columbia granted the motion of petitioner Celotex Corporation for summary judgment against respondent Catrett because the latter was unable to produce evidence in support of her allegation in her wrongful-death complaint that the decedent had been exposed to petitioner's asbestos products. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed, however, holding that petitioner's failure to support its motion with evidence tending to negate such exposure precluded the entry of summary judgment in its favor. Catrett v. Johns-Manville Sales Corp., 244 U. S. App. D. C. 160, 756 F. 2d 181 (1985). This view conflicted with that of the Third Circuit in In re Japanese Electronic Products, 723 F. 2d 238(1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986).^[2] We granted certiorari to resolve the conflict, 474 U. S. 944 (1985), and now reverse the decision of the District of Columbia Circuit.

Respondent commenced this lawsuit in September 1980, alleging that the death in 1979 of her husband, Louis H. Catrett, resulted from his exposure to products containing asbestos manufactured or distributed by 15 named corporations. Respondent's complaint sounded in negligence, breach of warranty, and strict liability. Two of the defendants filed motions challenging the District Court's in personam jurisdiction, and the remaining 13, including petitioner, filed motions for summary judgment. Petitioner's motion, which was first filed in September 1981, argued that summary judgment was proper because respondent had "failed to produce evidence that any [Celotex] product . . . was the proximate cause of the injuries alleged within the jurisdictional [320] limits of [the District] Court." In particular, petitioner noted that respondent had failed to identify, in answering interrogatories specifically requesting such information, any witnesses who could testify about the decedent's exposure to petitioner's asbestos products. In response to petitioner's summary judgment motion, respondent then produced three documents which she claimed "demonstrate that there is a genuine material factual dispute" as to whether the decedent had ever been exposed to petitioner's asbestos products. The three documents included a transcript of a deposition of the decedent, a letter from an official of one of the decedent's former employers whom petitioner planned to call as a trial witness, and a letter from an insurance company to respondent's attorney, all tending to establish that the decedent had been exposed to petitioner's asbestos products in Chicago during 1970-1971. Petitioner, in turn, argued that the three documents were inadmissible hearsay and thus could not be considered in opposition to the summary judgment motion.

In July 1982, almost two years after the commencement of the lawsuit, the District Court granted all of the motions filed by the various defendants. The court explained that it was granting petitioner's summary judgment motion because "there [was] no showing that the plaintiff was exposed to the defendant Celotex's product in the District of Columbia or elsewhere within the statutory period." App. 217.^[3] Respondent [321] appealed only the grant of summary judgment in favor of petitioner, and a divided panel of the District of Columbia Circuit reversed. The majority of the Court of Appeals held that petitioner's summary judgment motion was rendered "fatally defective" by the fact that petitioner "made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion." 244 U. S. App. D. C., at 163, 756 F. 2d, at 184 (emphasis in original). According to the majority, Rule 56(e) of the Federal Rules of Civil Procedure,^[4] and this Court's decision in Adickes v. S. H. Kress & Co., 398 U. S. 144, 159 (1970), establish that "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact." 244 U. S. App. D. C., at 163, 756 [322] F. 2d, at 184 (emphasis in original; footnote omitted). The majority therefore declined to consider petitioner's argument that none of the evidence produced by respondent in opposition to the motion for summary judgment would have been admissible at trial. Ibid. The dissenting judge argued that "[t]he majority errs in supposing that a party seeking summary judgment must always make an affirmative evidentiary showing, even in cases where there is not a triable, factual dispute." Id., at 167, 756 F. 2d, at 188 (Bork, J., dissenting). According to the dissenting judge, the majority's decision "undermines the traditional authority of trial judges to grant summary judgment in meritless cases." Id., at 166, 756 F. 2d, at 187.

We think that the position taken by the majority of the Court of Appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c) of the Federal Rules of Civil Procedure.^[5] Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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." In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, [323] there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]h[e] standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a) . . . ." Anderson v. Liberty Lobby, Inc., ante, at 250.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to "the affidavits, if any" (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment "with or without supporting affidavits" (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported [324] claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.^[6]

Respondent argues, however, that Rule 56(e), by its terms, places on the nonmoving party the burden of coming forward with rebuttal affidavits, or other specified kinds of materials, only in response to a motion for summary judgment "made and supported as provided in this rule." According to respondent's argument, since petitioner did not "support" its motion with affidavits, summary judgment was improper in this case. But as we have already explained, a motion for summary judgment may be made pursuant to Rule 56 "with or without supporting affidavits." In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing to which we have referred.

[325] The Court of Appeals in this case felt itself constrained, however, by language in our decision in Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970). There we held that summary judgment had been improperly entered in favor of the defendant restaurant in an action brought under 42 U. S. C. § 1983. In the course of its opinion, the Adickes Court said that "both the commentary on and the background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party . . . to show initially the absence of a genuine issue concerning any material fact." Id., at 159. We think that this statement is accurate in a literal sense, since we fully agree with the Adickes Court that the 1963 amendment to Rule 56(e) was not designed to modify the burden of making the showing generally required by Rule 56(c). It also appears to us that, on the basis of the showing before the Court in Adickes, the motion for summary judgment in that case should have been denied. But we do not think the Adickes language quoted above should be construed to mean that the burden is on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof. Instead, as we have explained, the burden on the moving party may be discharged by "showing" — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case.

The last two sentences of Rule 56(e) were added, as this Court indicated in Adickes, to disapprove a line of cases allowing a party opposing summary judgment to resist a properly made motion by reference only to its pleadings. While the Adickes Court was undoubtedly correct in concluding that these two sentences were not intended to reduce the burden of the moving party, it is also obvious that they were not adopted to add to that burden. Yet that is exactly the result which the reasoning of the Court of Appeals would produce; in effect, an amendment to Rule 56(e) designed to [326] facilitate the granting of motions for summary judgment would be interpreted to make it more difficult to grant such motions. Nothing in the two sentences themselves requires this result, for the reasons we have previously indicated, and we now put to rest any inference that they do so.

Our conclusion is bolstered by the fact that district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence. See 244 U. S. App. D. C., at 167-168, 756 F. 2d, at 189 (Bork, J., dissenting); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2720, pp. 28-29 (1983). It would surely defy common sense to hold that the District Court could have entered summary judgment sua sponte in favor of petitioner in the instant case, but that petitioner's filing of a motion requesting such a disposition precluded the District Court from ordering it.

Respondent commenced this action in September 1980, and petitioner's motion was filed in September 1981. The parties had conducted discovery, and no serious claim can be made that respondent was in any sense "railroaded" by a premature motion for summary judgment. Any potential problem with such premature motions can be adequately dealt with under Rule 56(f),^[7] which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery.

In this Court, respondent's brief and oral argument have been devoted as much to the proposition that an adequate showing of exposure to petitioner's asbestos products was [327] made as to the proposition that no such showing should have been required. But the Court of Appeals declined to address either the adequacy of the showing made by respondent in opposition to petitioner's motion for summary judgment, or the question whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent's burden of proof at trial. We think the Court of Appeals with its superior knowledge of local law is better suited than we are to make these determinations in the first instance.

The Federal Rules of Civil Procedure have for almost 50 years authorized motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact. Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Proc. 1; see Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F. R. D. 465, 467 (1984). Before the shift to "notice pleading" accomplished by the Federal Rules, motions to dismiss a complaint or to strike a defense were the principal tools by which factually insufficient claims or defenses could be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources. But with the advent of "notice pleading," the motion to dismiss seldom fulfills this function any more, and its place has been taken by the motion for summary judgment. Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

[328] The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE WHITE, concurring.

I agree that the Court of Appeals was wrong in holding that the moving defendant must always support his motion with evidence or affidavits showing the absence of a genuine dispute about a material fact. I also agree that the movant may rely on depositions, answers to interrogatories, and the like, to demonstrate that the plaintiff has no evidence to prove his case and hence that there can be no factual dispute. But the movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.

A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant's task to negate, if he can, the claimed basis for the suit.

Petitioner Celotex does not dispute that if respondent has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness' possible testimony raises no genuine issue of material fact. Tr. of Oral Arg. 43, 45. It asserts, however, that respondent has failed on request to produce any basis for her case. Respondent, on the other hand, does not contend that she was not obligated to reveal her witnesses and evidence but insists that she has revealed enough to defeat the motion for summary judgment. Because the Court of Appeals found it unnecessary to address this aspect [329] of the case, I agree that the case should be remanded for further proceedings.

JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join, dissenting.

This case requires the Court to determine whether Celotex satisfied its initial burden of production in moving for summary judgment on the ground that the plaintiff lacked evidence to establish an essential element of her case at trial. I do not disagree with the Court's legal analysis. The Court clearly rejects the ruling of the Court of Appeals that the defendant must provide affirmative evidence disproving the plaintiff's case. Beyond this, however, the Court has not clearly explained what is required of a moving party seeking summary judgment on the ground that the nonmoving party cannot prove its case.^[8] This lack of clarity is unfortunate: district courts must routinely decide summary judgment motions, and the Court's opinion will very likely create confusion. For this reason, even if I agreed with the Court's result, I would have written separately to explain more clearly the law in this area. However, because I believe that Celotex did not meet its burden of production under Federal Rule of Civil Procedure 56, I respectfully dissent from the Court's judgment.

[330] I

Summary judgment is appropriate where the court is satisfied "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." Fed. Rule Civ. Proc. 56(c). The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727, p. 121 (2d ed. 1983) (hereinafter Wright) (citing cases); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 56.15[3] (2d ed. 1985) (hereinafter Moore) (citing cases). See also, ante, at 323; ante, at 328 (WHITE, J., concurring). This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party. See 10A Wright § 2727. The court need not decide whether the moving party has satisfied its ultimate burden of persuasion^[9] unless and until the court finds that the moving party has discharged its initial [331] burden of production. Adickes v. S. H. Kress & Co., 398 U. S. 144, 157-161 (1970); 1963 Advisory Committee's Notes on Fed. Rule Civ. Proc. 56(e), 28 U. S. C. App., p. 626.

The burden of production imposed by Rule 56 requires the moving party to make a prima facie showing that it is entitled to summary judgment. 10A Wright § 2727. The manner in which this showing can be made depends upon which party will bear the burden of persuasion on the challenged claim at trial. If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial. Ibid. Such an affirmative showing shifts the burden of production to the party opposing the motion and requires that party either to produce evidentiary materials that demonstrate the existence of a "genuine issue" for trial or to submit an affidavit requesting additional time for discovery. Ibid.; Fed. Rules Civ. Proc. 56(e), (f).

If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim. See 10A Wright § 2727, pp. 130-131; Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L. J. 745, 750 (1974) (hereinafter Louis). If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. Anderson v. Liberty Lobby, Inc., ante, at 249.

Where the moving party adopts this second option and seeks summary judgment on the ground that the nonmoving party — who will bear the burden of persuasion at trial — has [332] no evidence, the mechanics of discharging Rule 56's burden of production are somewhat trickier. Plainly, a conclusory assertion that the nonmoving party has no evidence is insufficient. See ante, at 328 (WHITE, J., concurring). Such a "burden" of production is no burden at all and would simply permit summary judgment procedure to be converted into a tool for harassment. See Louis 750-751. Rather, as the Court confirms, a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record. Ante, at 323. This may require the moving party to depose the nonmoving party's witnesses or to establish the inadequacy of documentary evidence. If there is literally no evidence in the record, the moving party may demonstrate this by reviewing for the court the admissions, interrogatories, and other exchanges between the parties that are in the record. Either way, however, the moving party must affirmatively demonstrate that there is no evidence in the record to support a judgment for the nonmoving party.

If the moving party has not fully discharged this initial burden of production, its motion for summary judgment must be denied, and the court need not consider whether the moving party has met its ultimate burden of persuasion. Accordingly, the nonmoving party may defeat a motion for summary judgment that asserts that the nonmoving party has no evidence by calling the court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party. In that event, the moving party must respond by making an attempt to demonstrate the inadequacy of this evidence, for it is only by attacking all the record evidence allegedly supporting the nonmoving party that a party seeking summary judgment satisfies Rule 56's burden of production.^[10] Thus, if the record disclosed that the moving [333] party had overlooked a witness who would provide relevant testimony for the nonmoving party at trial, the court could not find that the moving party had discharged its initial burden of production unless the moving party sought to demonstrate the inadequacy of this witness' testimony. Absent such a demonstration, summary judgment would have to be denied on the ground that the moving party had failed to meet its burden of production under Rule 56.

The result in Adickes v. S. H. Kress & Co., supra, is fully consistent with these principles. In that case, petitioner was refused service in respondent's lunchroom and then was arrested for vagrancy by a local policeman as she left. Petitioner brought an action under 42 U. S. C. § 1983 claiming that the refusal of service and subsequent arrest were the product of a conspiracy between respondent and the police; as proof of this conspiracy, petitioner's complaint alleged that the arresting officer was in respondent's store at the time service was refused. Respondent subsequently moved for summary judgment on the ground that there was no actual evidence in the record from which a jury could draw an inference of conspiracy. In response, petitioner pointed to a statement from her own deposition and an unsworn statement by a Kress employee, both already in the record and both ignored by respondent, that the policeman who arrested petitioner was in the store at the time she was refused service. We agreed that "[i]f a policeman were present, . . . it would be open to a jury, in light of the sequence that followed, [334] to infer from the circumstances that the policeman and Kress employee had a `meeting of the minds' and thus reached an understanding that petitioner should be refused service." 398 U. S., at 158. Consequently, we held that it was error to grant summary judgment "on the basis of this record" because respondent had "failed to fulfill its initial burden" of demonstrating that there was no evidence that there was a policeman in the store. Id., at 157-158.

The opinion in Adickes has sometimes been read to hold that summary judgment was inappropriate because the respondent had not submitted affirmative evidence to negate the possibility that there was a policeman in the store. See Brief for Respondent 20, n. 30 (citing cases). The Court of Appeals apparently read Adickes this way and therefore required Celotex to submit evidence establishing that plaintiff's decedent had not been exposed to Celotex asbestos. I agree with the Court that this reading of Adickes was erroneous and that Celotex could seek summary judgment on the ground that plaintiff could not prove exposure to Celotex asbestos at trial. However, Celotex was still required to satisfy its initial burden of production.

II

I do not read the Court's opinion to say anything inconsistent with or different than the preceding discussion. My disagreement with the Court concerns the application of these principles to the facts of this case.

Defendant Celotex sought summary judgment on the ground that plaintiff had "failed to produce" any evidence that her decedent had ever been exposed to Celotex asbestos.^[11] App. 170. Celotex supported this motion with a [335] two-page "Statement of Material Facts as to Which There is No Genuine Issue" and a three-page "Memorandum of Points and Authorities" which asserted that the plaintiff had failed to identify any evidence in responding to two sets of interrogatories propounded by Celotex and that therefore the record was "totally devoid" of evidence to support plaintiff's claim. See id., at 171-176.

Approximately three months earlier, Celotex had filed an essentially identical motion. Plaintiff responded to this earlier motion by producing three pieces of evidence which she claimed "[a]t the very least . . . demonstrate that there is a genuine factual dispute for trial," id., at 143: (1) a letter from an insurance representative of another defendant describing asbestos products to which plaintiff's decedent had been exposed, id., at 160; (2) a letter from T. R. Hoff, a former supervisor of decedent, describing asbestos products to which decedent had been exposed, id., at 162; and (3) a copy of decedent's deposition from earlier workmen's compensation proceedings, id., at 164. Plaintiff also apparently indicated [336] at that time that she intended to call Mr. Hoff as a witness at trial. Tr. of Oral Arg. 6-7, 27-29.

Celotex subsequently withdrew its first motion for summary judgment. See App. 167.^[12] However, as a result of this motion, when Celotex filed its second summary judgment motion, the record did contain evidence — including at least one witness — supporting plaintiff's claim. Indeed, counsel for Celotex admitted to this Court at oral argument that Celotex was aware of this evidence and of plaintiff's intention to call Mr. Hoff as a witness at trial when the second summary judgment motion was filed. Tr. of Oral Arg. 5-7. Moreover, plaintiff's response to Celotex' second motion pointed to this evidence — noting that it had already been provided to counsel for Celotex in connection with the first motion — and argued that Celotex had failed to "meet its burden of proving that there is no genuine factual dispute for trial." App. 188.

On these facts, there is simply no question that Celotex failed to discharge its initial burden of production. Having chosen to base its motion on the argument that there was no evidence in the record to support plaintiff's claim, Celotex was not free to ignore supporting evidence that the record clearly contained. Rather, Celotex was required, as an initial matter, to attack the adequacy of this evidence. Celotex' failure to fulfill this simple requirement constituted a failure to discharge its initial burden of production under Rule 56, and thereby rendered summary judgment improper.^[13]

[337] This case is indistinguishable from Adickes. Here, as there, the defendant moved for summary judgment on the ground that the record contained no evidence to support an essential element of the plaintiff's claim. Here, as there, the plaintiff responded by drawing the court's attention to evidence that was already in the record and that had been ignored by the moving party. Consequently, here, as there, summary judgment should be denied on the ground that the moving party failed to satisfy its initial burden of production.^[14]

JUSTICE STEVENS, dissenting.

As the Court points out, ante, at 319-320, petitioner's motion for summary judgment was based on the proposition that respondent could not prevail unless she proved that her deceased husband had been exposed to petitioner's products "within the jurisdictional limits" of the District of Columbia.^[15] [338] Respondent made an adequate showing — albeit possibly not in admissible form^[16] — that her husband had been exposed to petitioner's product in Illinois.^[17] Although the basis of the motion and the argument had been the lack of exposure in the District of Columbia, the District Court stated at the end of the argument: "The Court will grant the defendant Celotex's motion for summary judgment there being no showing that the plaintiff was exposed to the defendant Celotex's product in the District of Columbia or elsewhere within the statutory period." App. 217 (emphasis added). The District Court offered no additional explanation and no written opinion. The Court of Appeals reversed on the basis that Celotex had not met its burden; the court noted the incongruity of the District Court's opinion in the context of the motion and argument, but did not rest on that basis because of the "or elsewhere" language.^[18]

Taken in the context of the motion for summary judgment on the basis of no exposure in the District of Columbia, the [339] District Court's decision to grant summary judgment was palpably erroneous. The court's bench reference to "or elsewhere" neither validated that decision nor raised the complex question addressed by this Court today. In light of the District Court's plain error, therefore, it is perfectly clear that, even after this Court's abstract exercise in Rule construction, we should nonetheless affirm the reversal of summary judgment on that narrow ground.^[19]

I respectfully dissent.

[1] Stephen M. Shapiro, Robert L. Stern, William H. Crabtree, Edward P. Good, and Paul M. Bator filed a brief for the Motor Vehicle Manufacturers Association et al. as amici curiae urging reversal.

[2] Since our grant of certiorari in this case, the Fifth Circuit has rendered a decision squarely rejecting the position adopted here by the District of Columbia Circuit. See Fontenot v. Upjohn Co., 780 F. 2d 1190 (1986).

[3] JUSTICE STEVENS, in dissent, argues that the District Court granted summary judgment only because respondent presented no evidence that the decedent was exposed to Celotex asbestos products in the District of Columbia. See post, at 338-339. According to JUSTICE STEVENS, we should affirm the decision of the Court of Appeals, reversing the District Court, on the "narrower ground" that respondent "made an adequate showing" that the decedent was exposed to Celotex asbestos products in Chicago during 1970-1971. See ibid.

JUSTICE STEVENS' position is factually incorrect. The District Court expressly stated that respondent had made no showing of exposure to Celotex asbestos products "in the District of Columbia or elsewhere." App. 217 (emphasis added). Unlike JUSTICE STEVENS, we assume that the District Court meant what it said. The majority of the Court of Appeals addressed the very issue raised by JUSTICE STEVENS, and decided that "[t]he District Court's grant of summary judgment must therefore have been based on its conclusion that there was `no showing that the plaintiff was exposed to defendant Celotex's product in the District of Columbia or elsewhere within the statutory period.' " Catrett v. Johns-Manville Sales Corp., 244 U. S. App. D. C. 160, 162, n. 3, 756 F. 2d 181, 183, n. 3 (1985) (emphasis in original). In other words, no judge involved in this case to date shares JUSTICE STEVENS' view of the District Court's decision.

[4]Rule 56(e) provides:

"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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

[5]Rule 56(c) provides:

"The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."

[6] See Louis, Federal Summary Judgment Doctrine: A Critical Analysis, 83 Yale L. J. 745, 752 (1974); Currie, Thoughts on Directed Verdicts and Summary Judgments, 45 U. Chi. L. Rev. 72, 79 (1977).

[7]Rule 56(f) provides:

"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."

[8] It is also unclear what the Court of Appeals is supposed to do in this case on remand. JUSTICE WHITE — who has provided the Court's fifth vote — plainly believes that the Court of Appeals should reevaluate whether the defendant met its initial burden of production. However, the decision to reverse rather than to vacate the judgment below implies that the Court of Appeals should assume that Celotex has met its initial burden of production and ask only whether the plaintiff responded adequately, and, if so, whether the defendant has met its ultimate burden of persuasion that no genuine issue exists for trial. Absent some clearer expression from the Court to the contrary, JUSTICE WHITE'S understanding would seem to be controlling. Cf. Marks v. United States, 430 U. S. 188, 193 (1977).

[9] The burden of persuasion imposed on a moving party by Rule 56 is a stringent one. 6 Moore ¶ 56.15[3], p. 56-466; 10A Wright § 2727, p. 124. Summary judgment should not be granted unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., ante, at 255, and any doubt as to the existence of a genuine issue for trial should be resolved against the moving party, Adickes v. S. H. Kress & Co., 398 U. S. 144, 158-159 (1970). In determining whether a moving party has met its burden of persuasion, the court is obliged to take account of the entire setting of the case and must consider all papers of record as well as any materials prepared for the motion. 10A Wright § 2721, p. 44; see, e. g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F. 2d 922, 930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F. 2d 653, 656 (CA5 1979). As explained by the Court of Appeals for the Third Circuit in In re Japanese Electronic Products Antitrust Litigation, 723 F. 2d 238 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), "[i]f . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment . . . ." 723 F. 2d, at 258.

[10] Once the moving party has attacked whatever record evidence — if any — the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f). See 10A Wright § 2727, pp. 138-143. Summary judgment should be granted if the nonmoving party fails to respond in one or more of these ways, or if, after the nonmoving party responds, the court determines that the moving party has met its ultimate burden of persuading the court that there is no genuine issue of material fact for trial. See, e. g., First National Bank of Arizona v. Cities Service Co., 391 U. S. 253, 289 (1968).

[11] JUSTICE STEVENS asserts that the District Court granted summary judgment on the ground that the plaintiff had failed to show exposure in the District of Columbia. He contends that the judgment of the Court of Appeals reversing the District Court's judgment should be affirmed on the "narrow ground" that it was "palpably erroneous" to grant summary judgment on this basis. Post, at 339 (dissenting). The Court replies that what the District Court said was that plaintiff had failed to show exposure in the District of Columbia "or elsewhere." Ante, at 320, n. 2. In my view, it does not really matter which reading is correct in this case. For, contrary to JUSTICE STEVENS' claim, deciding this case on the ground that Celotex failed to meet its burden of production under Rule 56 does not involve an "abstract exercise in Rule construction." Post, at 339 (STEVENS, J., dissenting). To the contrary, the principles governing a movant's burden of proof are straightforward and well established, and deciding the case on this basis does not require a new construction of Rule 56 at all; it simply entails applying established law to the particular facts of this case. The choice to reverse because of "palpable erro[r]" with respect to the burden of a moving party under Rule 56 is thus no more "abstract" than the choice to reverse because of such error with respect to the elements of a tort claim. Indeed, given that the issue of the moving party's burden under Rule 56 was the basis of the Court of Appeals' decision, the question upon which certiorari was granted, and the issue briefed by the parties and argued to the Court, it would seem to be the preferable ground for deciding the case.

[12] Celotex apparently withdrew this motion because, contrary to the assertion made in the first summary judgment motion, its second set of interrogatories had not been served on the plaintiff.

[13] If the plaintiff had answered Celotex' second set of interrogatories with the evidence in her response to the first summary judgment motion, and Celotex had ignored those interrogatories and based its second summary judgment motion on the first set of interrogatories only, Celotex obviously could not claim to have discharged its Rule 56 burden of production. This result should not be different simply because the evidence plaintiff relied upon to support her claim was acquired by Celotex other than in plaintiff's answers to interrogatories.

[14] Although JUSTICE WHITE agrees that "if [plaintiff] has named a witness to support her claim, summary judgment should not be granted without Celotex somehow showing that the named witness' possible testimony raises no genuine issue of material fact," he would remand "[b]ecause the Court of Appeals found it unnecessary to address this aspect of the case." Ante, at 328-329 (concurring). However, Celotex has admitted that plaintiff had disclosed her intent to call Mr. Hoff as a witness at trial before Celotex filed its second motion for summary judgment. Tr. of Oral Arg. 6-7. Under the circumstances, then, remanding is a waste of time.

[15] See Motion of Defendant Celotex Corporation for Summary Judgment, App. 170 ("Defendant Celotex Corporation, pursuant to Rule 56 (b) of the Federal Rules of Civil Procedure moves this Court for an Order granting Summary Judgment on the ground that plaintiff has failed to produce evidence that any product designed, manufactured or distributed by Celotex Corporation was the proximate cause of the injuries alleged within the jurisdictional limits of this Court") (emphasis added); Memorandum of Points and Authorities in Support of Motion of Defendant Celotex Corporation for Summary Judgment, id., at 175 (Plaintiff "must demonstrate some link between a Celotex Corporation product claimed to be the cause of the decedent's illness and the decedent himself. The record is totally devoid of any such evidence within the jurisdictional confines of this Court") (emphasis added); Transcript of Argument in Support of Motion of Defendant Celotex Corporation for Summary Judgment, id., at 211 ("Our position is . . . there has been no product identification of any Celotex products . . . that have been used in the District of Columbia to which the decedent was exposed") (emphasis added).

[16] But cf. ante, at 324 ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment").

[17] See App. 160 (letter from Aetna Life Insurance Co.) (referring to the "asbestos that Mr. Catrett came into contact with while working for Anning-Johnson Company" and noting that the "manufacturer of this product" was purchased by Celotex); id., at 162 (letter from Anning-Johnson Co.) (confirming that Catrett worked for the company and supervised the installation of asbestos produced by the company that Celotex ultimately purchased); id., at 164, 164c (deposition of Catrett) (description of his work with asbestos "in Chicago").

[18] See Catrett v. Johns-Manville Sales Corp., 756 F. 2d 181, 185, n. 14 (1985) ("[T]he discussion at the time the motion was granted actually spoke to venue. It was only the phrase `or elsewhere,' appearing with no prior discussion, in the judge's oral ruling at the close of argument that made the grant of summary judgment even conceivably proper").

[19] Cf. n. 2, supra. The Court's statement that the case should be remanded because the Court of Appeals has a "superior knowledge of local law," ante, at 327, is bewildering because there is no question of local law to be decided. Cf. Bishop v. Wood,426 U. S. 341, 345-347 (1976).

The Court's decision to remand when a sufficient ground for affirmance is available does reveal, however, the Court's increasing tendency to adopt a presumption of reversal. See, e. g., New York v. P. J. Video, Inc., 475 U. S. 868, 884 (1986) (MARSHALL, J., dissenting); Icicle Seafoods, Inc. v. Worthington, 475 U. S. 709, 715 (1986) (STEVENS, J., dissenting); City of Los Angeles v. Heller, 475 U. S. 796, 800 (1986) (STEVENS, J., dissenting); Pennsylvania v. Goldhammer, 474 U. S. 28, 31 (1985) (STEVENS, J., dissenting). As a matter of efficient judicial administration and of respect for the state and federal courts, I believe the presumption should be precisely the opposite.

15.5 Catrett v. Johns-Manville Sales Corp. 15.5 Catrett v. Johns-Manville Sales Corp.

Celotex on remand

The Supreme Court majority opinion remanded the Celotex litigation to the D.C. Circuit. Small pieces of the opinions from the D.C. Circuit's resulting opinion appear below. The panel found that, assuming that the movant (Celotex) had discharged its burden to produce an argument that there was an absence of evidence that the decedent had been exposed to Celotex's asbestos products, the non-moving party (plaintiff) had produced enough evidence of exposure to demonstrate a genuine issue of material fact, and so ruled against summary judgment. The majority reviewed the three documents upon which the plaintiff (Catrett) had based her case: a transcript of testimony in a worker's compensation claim detailing exposure, a letter from the the corporation to an insurance agent detailing the worker's employment, and a letter from the insurance agent (named Hoff) to the plaintiff's counsel. The panel majority agreed with Catrett that, if it ended up being admissible, this evidence could allow a rational jury to infer exposure to Celotex asbestos (specifically, a product called Firebar). Celotex had argued that the documents were inadmissible hearsay, and thus should not have been considered in the Rule 56 motion. The panel majority thought the issue of admissibility was unclear and would thus have to be resolved at trial. In addition, the panel majority suggested that Celotex had failed to raise the issue of the admissibility of the documents in the trial court, and thus should not be heard to argue that point on appeal.

United States Court of Appeals for the District of Columbia Circuit

826 F.2d 33

No. 83-1694

1987-08-07

Myrtle Nell CATRETT, Administratrix of the Estate of Louis H. Catrett, Deceased, Appellant, v. JOHNS-MANVILLE SALES CORPORATION, et al.

No. 83-1694.

United States Court of Appeals, District of Columbia Circuit.

Argued April 22, 1987.

Decided Aug. 7, 1987.

Peter T. Enslein, Washington, D.C., with whom Peter T. Nicholl, Baltimore, Md., and James F. Green, Washington, D.C., were on the brief, for appellant.

Leland Van Koten, with whom H. Emslie Parks, Baltimore, Md., was on the brief, for appellees.

Before WALD, Chief Judge, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge STARR.

Dissenting opinion filed by Circuit Judge BORK.

STARR, Circuit Judge:

This case is before us on remand from the Supreme Court. The sole question is whether the District Court properly granted summary judgment in favor of an asbestos manufacturer in a suit brought by the survivor of a victim of asbestosis. The underlying litigation began in 1980 when Myrtle Nell Catrett, the appellant in this action, commenced suit in federal district court against 15 named corporations that manufactured or distributed products containing asbestos. Mrs. Catrett’s husband, Louis Catrett, had died a year earlier, having devoted a lifetime’s work to construction activities involving the use of various asbestos products.

One of the defendants named in Mrs. Catrett’s lawsuit was Celotex Corporation, the sole defendant now before us. The District Court granted Celotex’s motion for summary judgment, concluding that there was no evidence of Mr. Catrett’s exposure to Celotex’s products. In our earlier opinion in this case, however, a divided panel reversed. In the panel majority’s view, Celotex, by offering no supporting evidence, failed to file a properly supported *34motion for summary judgment as required by Federal Rule of Civil Procedure 56(e). See 756 F.2d 181 (D.C.Cir.1985). Since the majority found Celotex’s motion facially inadequate, we did not consider whether Mrs. Catrett's response sufficed to demonstrate a “genuine issue for trial.” See id. at 184-85; Fed.R.Civ.P. 56(e) (after properly supported summary judgment motion is filed, burden is on party opposing summary judgment to show “genuine issue for trial”).

The Supreme Court reversed. 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Agreeing with Judge Bork’s dissent, the Court instructed that while “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ ” id. at 2553 (quoting Fed.R.Civ.P. 56(c)), that support its motion, such an identification is sufficient properly to support a summary judgment motion. Having thus concluded that Celotex had met its initial burden of production and filed a proper summary judgment motion,1 the Court reversed and remanded the case, suggesting that our “superior knowledge of local law” made us “better suited” to address questions we had previously found unnecessary to consider, namely

the adequacy of the showing made by [Mrs. Catrett] in opposition to [Celotex’s] motion for summary judgment, or ... whether such a showing, if reduced to admissible evidence, would be sufficient to carry [Mrs. Catrett’s] burden of proof at trial.

Id. at 2555. We thus are called upon to determine whether Mrs. Catrett’s showing was sufficient to avoid summary judgment under Federal Rule of Civil Procedure 56(e).

Before proceeding to an evaluation of Mrs. Catrett’s showing, we first need to review, briefly, the course of this litigation as it relates to Celotex. The first significant event bearing on the summary judgment issue occurred in February 1981 with the filing of a joint set of interrogatories by all defendants. Three of these interrogatories are particularly relevant to our inquiry. The first, number 26, asked Mrs. Catrett to identify “persons having knowledge of facts relevant to the subject matter in this lawsuit” and to indicate which of those persons she “intend[ed] to produce as witnesses in the trial in this action.” Docket Entry (D.E.) 47 at 10. The second and third, numbers 51 and 52, were more specific, seeking detailed information concerning Mr. Catrett’s work with asbestos, asking, inter alia, for the “type and identity of each such asbestos material with which [he] had contact.” Id. at 14-16.

Mrs. Catrett filed her answers in June 1981. Her response to numbers 26, 51, and 52 was the same; she simply indicated that she would respond later, in supplemental answers. See D.E. 61 at 18, 25.2

Three months later, in September 1981, Celotex filed its first motion for summary judgment, the central thrust of which was that Mrs. Catrett had “failed to show the *35decedent came into contact with any product containing asbestos designed, manufactured, or distributed by Celotex.” D.E. 77.

Mrs. Catrett filed an opposition to that motion in October 1981.3 In response to the contention that she had failed to demonstrate her late husband’s exposure to Celotex’s products, Mrs. Catrett directed the court’s attention to three items, which she claimed “[a]t the very least ... demonstrate that there is a genuine factual dispute for trial”: (1) a transcript of Mr. Catrett’s testimony in a workmen’s compensation claim, in which he indicated his exposure to a product called “Firebar” while working for a company called Anning-Johnson in the Chicago, Illinois area; (2) a letter from the Assistant Secretary of Anning-Johnson, T.R. Hoff, to a Mr. O’Keefe of Aetna Casualty & Surety, Anning-Johnson’s insurance company, reporting on Mr. Catrett’s employment with Anning-Johnson4; and (3) a letter from Aetna’s Mr. O’Keefe to Mrs. Catrett’s counsel essentially restating the contents of the Hoff letter. D.E. 875. In the wake of Mrs. Catrett’s filing, Celotex in November 1981 withdrew its motion for summary judgment. D.E. 97.

One month later, Celotex took another tack, filing a motion for a change of venue. The motion sought transfer of the case to the Northern District of Illinois. D.E. 129. In its accompanying Memorandum of Points and Authorities, Celotex set forth the following basis for its motion: Mr. Catrett was based in the Chicago area “at all times during his alleged exposure to any product manufactured by The Corporation and/or its subsidiaries.” Id. Celotex attached to its memorandum four supporting exhibits, two of which are relevant here. The first, labeled “Deposition of Decedent,” was a portion of the same workmen’s compensation testimony Mrs. Catrett had submitted in her opposition to Celotex’s earlier (withdrawn) motion for summary judgment. Compare id. Exhibit A with D.E. 87 Exhibit E. As noted above, in this testimony Mr. Catrett recounted his use of an asbestos product named Firebar while working for Anning-Johnson. The second exhibit of relevance for our purposes was a collection of purchase orders reflecting the sale and shipment of Firebar to Anning-Johnson. Several of these documents evidenced the shipment of Firebar from an entity called “Carey-Canadian Asbestos,” which is identified in those doc*36uments as “A Division of Panacon Corporation,” to Anning-Johnson during 1971. That was, of course, the period when Mr. Catrett worked at Anning-Johnson in the Chicago area. See id. Exhibit D.6

Shortly after filing its change of venue motion, Celotex renewed its motion for summary judgment. The second motion was differently crafted from the first, aborted motion; now, Celotex contended that Mrs. Catrett had failed to show exposure “within the jurisdictional limits” of the District Court, a rather different point than that advanced in its geographically unlimited initial motion. D.E. 137. Celotex’s memorandum supporting this second motion likewise limited the claim to Mrs. Catrett’s asserted failure to show exposure to a lack of “any such evidence [of exposure to Celotex products] within the jurisdictional confines of [the District] Court.” Id. (emphasis added).

In January 1982, Mrs. Catrett filed an opposition to Celotex’s new summary judgment motion, again directing the court's attention to the three evidentiary items upon which she had originally relied: (1) the workmen’s compensation testimony of Mr. Catrett; (2) the Hoff letter; and (3) the O’Keefe letter. D.E. 142. Then in February 1982, Mrs. Catrett filed Supplemental Answers to Defendant’s Interrogatories, including interrogatory number 26, referred to above.7 In her supplemental response, Mrs. Catrett listed “T.R. Hoff, Assistant Secretary, Anning-Johnson Company” as a person “having knowledge of facts relevant to the subject matter in this lawsuit.” She further indicated that Mr. Hoff would be called as a witness at trial. D.E. 161.

This is where matters stood in July 1982, when the District Court held a hearing on Celotex’s motions for a change of venue and summary judgment. In that hearing, counsel for Celotex addressed the three items of evidence relied upon by Mrs. Catrett. Although Celotex had itself submitted the decedent’s workmen’s compensation testimony to support its change of venue motion (and argued that the District Court should consider the testimony “for the limited purposes of use in this motion” 8), Celotex nonetheless objected to the testimony on the ground that it “would not be admissible.” D.E. 184B at 4 (Transcript of the July 1982 proceeding). No such objection, however, was interposed with respect to the Hoff letter’s admissibility, or relevance, although to be sure Celotex did generally disparage the letter’s value. At the conclusion of the hearing, the District Court granted Celotex’s motion for summary judgment on the spot, ruling from the bench that there had been “no showing that the plaintiff was exposed to the defendant Celotex’s product in the District of Columbia or elsewhere within the statutory period.” Id. at 9.9 No opinion was forthcoming.

*37The correctness of this ruling, in light of the record before the District Court, is the issue we face today. More specifically, the precise question is whether the record before the District Court at the moment of truth evidenced a genuine issue of material fact. We are emphatically not called upon to decide whether this action must go to trial or whether, to the contrary, the case could be disposed of on summary judgment on the basis of a more fully developed record. Our sole and limited task is to assess with care the record before the District Court at the time it granted Celotex’s summary judgment motion and to determine whether that ruling was proper in light of the state of the record at that juncture.

Upon review, we discern several items pointing to the existence of a genuine issue concerning Mr. Catrett’s alleged exposure to Celotex products. First, Mrs. Catrett (twice) submitted the letter from Mr. Hoff, the Anning-Johnson executive. This letter chronicles Mr. Catrett’s work for AnningJohnson, reporting that he worked for the company for “one calendar year ending, 12/22/71.” According to the Hoff letter, Mr. Catrett’s “duties were to supervise and train crews in the application of Firebar Fireproofing.” D.E. 142 Exhibit C. Thus, on its face, the letter reflects knowledge by a specific Anning-Johnson official of the deceased employee’s exposure to Firebar fireproofing. The letter further relates an “understanding” that the manufacturer of Firebar was now owned by Celotex. See supra note 4.

Confronted with this potentially damning piece of evidence, Celotex argues that the Hoff letter should be ignored by virtue of its asserted inadmissibility at trial. See Brief of Appellee The Celotex Corp. at 8-11; see also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2721 (2d ed. 1983) (In passing on a summary judgment motion, a court may consider materials specified in Federal Rule of Civil Procedure 56(c) as well as “any material that would be admissible or usable at trial.” (emphasis added)).

In the circumstances of this case, we believe that the Hoff letter should be considered. The inadmissibility of the letter, despite Celotex’s contention to the contrary, is by no means obvious (although we need not and do not pass judgment on its admissibility). Mrs. Catrett argues that the letter is admissible, see Reply Brief for Appellant at 8-9, asserting that the Hoff letter is admissible as falling within the business records exception to the hearsay rule. See Fed.R.Evid. 803(6). More importantly, Celotex never objected to the District Court’s consideration of the Hoff letter. To the contrary, in the hearing on Celotex’s two motions, counsel for Celotex discussed in detail the substance of the Hoff letter, and at one point the letter was handed in open court to the District Judge (at his request) for his examination. See D.E. 184B at 4, 6.

In this situation, it could scarcely be clearer that the letter was before the District Court; what is more, in the absence of even a hint to the contrary from the trial court (much less a ruling), we can only presume that the document was duly considered by the court in reaching its ruling. After all, the District Judge specifically asked to see the document and was, as we just recounted, furnished a copy moments before handing down his ruling from the bench. Since it is well established that “inadmissible documents may be considered by the court if not challenged,” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2722, at 60 (2d *38ed. 1983),10 we are satisfied that the Hoff letter is properly (at this stage) to be considered in assessing whether a genuine issue of fact exists.

The second item also relates to Mr. Hoff. In her supplemental interrogatory responses, Mrs. Catrett listed Hoff as a witness. There can, of course, be no doubt that this response is properly considered in ruling on a summary judgment motion. See Fed.R. Civ.P. 56(c) (specifically listing “answers to interrogatories” as items that may be considered). Taking this response together with the Hoff letter, the record, dispassionately viewed, reflects the existence of a witness who can testify with respect to Mr. Catrett’s exposure to Firebar.11 Thus, even if the Hoff letter itself would not be admissible at trial, Mrs. Catrett has gone on to indicate that the substance of the letter is reducible to admissible evidence in the form of trial testimony. See Celotex Corp. v. Catrett, 106 S.Ct. at 2553 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”).12

Third, as we recounted above, the record contains several documents, submitted by Celotex, recording the sale of Firebar to Anning-Johnson during the period when Mr. Catrett worked there. See D.E. 129 Exhibit D. These documents operate to put Firebar and Mr. Catrett in the same place at the same time. Since Mrs. Catrett’s interrogatory responses make it *39abundantly clear that Mr. Catrett’s particular vocation was the application of fireproofing, these documents go a long way toward creating a genuine issue with respect to Mr. Catrett’s exposure to Firebar.

Fourth, the record reflects a direct link among the three corporate entities or divisions of relevance, namely Carey-Canadian Asbestos, Panacon Corporation, and Celotex. Carey-Canadian is identified in the sales records furnished by Celotex as the entity selling Firebar to Anning-Johnson, Mr. Catrett’s employer. Those sales records describe Carey-Canadian as “A Division of Panacon Corporation.” D.E. 129 Exhibit D. Celotex’s interrogatory responses, in turn, relate that Panacon was merged into Celotex in 1972 (thus corroborating the more general statements as to corporate ownership found in the Hoff letter). The responses stated, in addition, that “[tjhis merger was ... statutory, and The Celotex Corporation assumed the assets and ordinary liabilities of Panacon Corporation.” D.E. 80 Exhibit A. Thus, notwithstanding Celotex’s protestations to the contrary, see Supplemental Brief of Appellee at 8-10, the record before the District Court evinces a clear link between Carey-Canadian and Celotex, and thus between Celotex and Firebar.

If Celotex desires to press its contention that it is not liable for any injury or death caused by the use of Firebar, it is obviously at liberty to do so. We need not and do not pass judgment on the merits of any such contention. Our conclusion in this respect is much narrower; we are satisfied that the record before the District Court when it granted summary judgment admits of only one conclusion — Celotex is responsible for the ordinary liabilities of Carey-Canadian.

Ill

Our task in determining whether these evidentiary items, taken together, render summary judgment improper is well marked out, both in the express language of Rule 56 and relevant Supreme Court precedent. Rule 56(c) directs that summary judgment is to be granted if the record shows

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.

Fed.R.Civ.P. 56(c). As the Supreme Court recently instructed in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” The Court observed, furthermore, that the standard is identical to the standard for directed verdict; a court must ask

whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

Id. at 2512; see also Catrett, 756 F.2d at 188-89 (Bork, J., dissenting).

Considering the record before the District Court when it granted summary judgment13 — in particular, the four items discussed above — we believe that the issue of exposure was not so one-sided that Celotex was entitled to judgment as a matter of law. The record contains sufficient evidence to create a genuine issue of material fact with respect to Mr. Catrett’s exposure to the asbestos product Firebar while working for Anning-Johnson. While the four items taken individually provide less than overpowering support for Mrs. Catrett’s position, their cumulative effect is, we be*40lieve, sufficient to defeat the summary judgment motion.14

To recapitulate, the four items described above, together with certain other general information from both Mrs. Catrett’s and Celotex’s interrogatory responses, see supra notes 2 & 3, establish a sufficient linkage between Mr. Catrett and Firebar, and then between Firebar and Celotex, to create a genuine issue with respect to Mr. Catrett’s exposure to Celotex produets. First, the interrogatory responses show that Mr. Catrett worked as a fireproofer. See D.E. 61 at 3-8 (listing occupations). Indeed, that point, we gather, is uncontested. Second, the interrogatory responses show that Mr. Catrett worked for AnningJohnson in 1971. See supra note 2. Third, the Hoff letter indicates that Mr. Catrett’s duties at Anning-Johnson involved the application of Firebar fireproofing. See D.E. 142 Exhibit C. Fourth, the identification of Hoff as a witness who will be called at trial, see D.E. 161, suggests (on this record) that his trial testimony could detail Mr. Catrett’s activities at Anning-Johnson (as well as perhaps establishing other potentially relevant facts, such as whether Anning-Johnson utilized other types of fireproofing). Fifth, the sales records submitted by Celotex to support its motion for change of venue indicate that Firebar was shipped by Carey-Canadian Asbestos, a division of Panacon Corp., to Anning-Johnson during 1971. See D.E. 129 Exhibit D. Sixth, and last, Panacon (and Carey-Canadian) merged with Celotex in 1972, with Celotex assuming the “ordinary liabilities of Panacon Corporation.” D.E. 80 Exhibit A.

On this record, therefore, an unbroken chain links Mr. Catrett to Firebar, and Fire-bar to Celotex. Under the specific circumstances before us, we cannot, in conscience, conclude on this state of the record that no genuine issue of material fact exists with respect to Mr. Catrett’s exposure to Celotex products. Accordingly, the District Court’s grant of summary judgment was, on the basis of the record then before it, in error. We therefore reverse the judgment and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

. Justice Brennan’s dissent suggests that on remand this court "should reevaluate whether the defendant met its initial burden of production." 106 S.Ct. at 2556 n. 1 (Brennan, J., dissenting). Justice Brennan’s suggestion, coming in the face of what seems to us the clear conclusion by the majority that the burden has been met, see id. at 2555, is based upon the argument that Justice White, in his separate concurrence, id. at 2555 (White, J., concurring), "plainly believes” reevaluation is appropriate and that Justice White’s views should control. Id. at 2556 n. 1 (citing Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)). Upon reflection, we believe it prudent not to accept the invitation. Justice White did, after all, join the opinion of the majority and thus that opinion controls our examination of the case on remand. Compare Marks, 430 U.S. at 193, 97 S.Ct. at 993 (discussing situation where no opinion is joined by a majority of Justices).

. Before Mrs. Catrett filed her opposition, Celotex filed its answers to her interrogatories. Two related items from these answers are relevant. First, in a preliminary statement, Celotex identified itself as a "successor-in-business” to various companies "which were engaged in the manufacture and sale of asbestos containing insulation products,” and indicated that its "involvement in the asbestos insulation business began with its purchase of Panacon Corp. in 1972.” D.E. 80 at 1. Second, in an attached exhibit, Celotex offered a more detailed description of the Panacon merger:

On June 30, 1972, Panacon Corporation was merged into The Celotex Corporation____ This merger was also statutory, and The Celotex Corporation assumed the assets and ordinary liabilities of Panacon Corporation.

Id. exhibit A. Thus, the record before the District Court reflected, at that early stage, a direct link between Celotex and Panacon. Moreover, Celotex’s interrogatory responses expressly state that it had assumed Panacon’s ordinary liabilities, a statement Celotex’s counsel confirmed and amplified at oral argument before this court on remand from the Supreme Court.

. In our previous opinion in this case, we observed that during the hearing the District Court focused, almost exclusively, on the notion that the only alleged exposure occurred outside the District of Columbia and on the issue of venue. See 756 F.2d at 185 n. 14; see also id. at 183 n. 3. We repeat that observation here. We nonetheless gave dispositive weight to the District Court's inclusion of the two words, "or elsewhere,” because, as we noted, it was only the inclusion of that phrase that made the District Court’s ruling "even conceivably proper." Id. at 185 n. 14. Justice Stevens discussed this point in his dissent, arguing that the District Court was clearly granting summary judgment "on the *37basis of no exposure in the District of Columbia,” a ruling Justice Stevens described as "palpably erroneous.” 106 S.Ct. at 2561 (Stevens, J., dissenting). Although we would agree with Justice Stevens’ observations, if that were indeed the trial court’s ruling, we are nonetheless constrained not to pierce the veil, as it were, of the District Judge’s actual words; we thus once again treat the District Court’s ruling as a bona fide grant of summary judgment on the basis of no evidence of exposure in the District of Columbia or elsewhere. See also id. at 2551 n. 2 (majority’s discussion of Justice Stevens’ dissent).

. "As is true of other material introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged. The objection must be timely or it will be deemed to have been waived.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2722, at 60-61 (2d ed. 1983) (footnotes omitted). Since here Celotex interposed no objection to the Hoff letter’s admissibility — indeed, as we point out in text, Celotex dealt with the substance of the Hoff letter, D.E. 184B at 4 — it is clear that the objection has been waived. As we have also noted, the District Court asked to see and was handed a copy of the Hoff letter. Id. at 6. We are not persuaded to the contrary conclusion by the dissent’s assertion, Dissent at 4-5 n. 1, based principally on an aposiopetic remark by counsel plus the word "either,” that Celotex did object to the admissibility of the letter. But in any event, the District Court did consider the letter and ruled on the summary judgment motion only after having examined the letter. It strikes us as hypertechnical in the extreme to suggest that an objection (1) never clearly articulated by Celotex, (2) never ruled upon by the District Court, and (3) implicitly overruled by virtue of the District Court’s consideration of the letter, would prevent us from taking into account, on appeal, the very evidentiary materials that were before the District Court in ruling on this motion.

. Indeed, counsel for Celotex conceded in oral argument before the Supreme Court that if Mrs. Catrett’s interrogatory response listing Hoff as a witness had also described his testimony as reflecting exposure by Mr. Catrett — for example, by paraphrasing the contents of the Hoff letter — summary judgment would have been inappropriate. Under those circumstances, Celotex would then be obligated to take Hoffs deposition (or otherwise secure a statement from him by affidavit or declaration) in order successfully to move for summary judgment. See Transcript of Supreme Court Oral Argument at 43, reprinted in Supplemental Brief of Appellee Appendix 2. The situation in the record seems to us quite similar, functionally, to a more detailed interrogatory response. We are therefore puzzled by the dissent's assertion that this “falls far short of ... even suggesting that anyone has been identified [with] personal knowledge about any asbestos exposure.” Dissent at 41. Indeed, the conclusion we draw seems an eminently reasonable, if not inescapable, inference. It is entirely in keeping with the Supreme Court’s admonition that "all justifiable inferences are to be drawn in ... favor [of the non-movant] ... [and] a trial court ... may ... deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

. See also Celotex Corp. v. Catrett, 106 S.Ct. at 2555 (determination on remand is whether Catrett’s showing "if reduced to admissible evidence" would be sufficient to carry her burden at trial); id. (White, J., concurring) ("A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case."); Supplemental Brief of Appellee at 7 ("The Supreme Court recognized that Rule 56 does not require the party opposing a summary judgment motion to put her evidence into admissible form____ A party is not excused, however, from demonstrating that its evidence can be put into admissible form____”).

. We do not consider two items from the record: (1) Mr. Catrett’s workmen’s compensation testimony; and (2) the letter from Mr. O’Keefe to Mrs. Catrett’s attorney. We believe it would be inappropriate to consider the first item. It is not unlikely that the evidence would be held inadmissible, see Fed.R.Evid. 804(b)(1); in addition, Celotex specifically objected before the District Court to its consideration (while at the same time using it for the limited purpose of supporting its change of venue motion). See D.E. 184B at 4. The second item, the O'Keefe letter, is not considered for a more basic reason. To paraphrase, liberally, Gertrude Stein’s observation, there is nothing there to consider. The O’Keefe letter is merely a restatement of the contents of the Hoff letter and, as such, offers no independent evidence of a genuine issue of material fact.

BORK, Circuit Judge,

dissenting:

In this case, a tort suit involving the alleged exposure of plaintiff's deceased husband to asbestos products, the district court granted summary judgment for the defendant manufacturer. The Supreme Court has now held that the defendant carried its burden, in presenting a motion for summary judgment, of coming forward with proof of the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The issue before us on remand is to specify the plaintiffs burden in opposition to the motion and to assess whether the plaintiff has met her burden in this case. The majority finds that she has met her burden, and has made enough of a showing to defeat the motion for summary judgment. I disagree.

The Federal Rules of Civil Procedure state that when one party offers a properly supported motion for summary judgment, the other party’s response, “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Fed. R.Civ.P. 56(e). In Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court explicitly endorsed the requirement that “specific facts” must be set forth. Id. at 2511; see also Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). *41The Court also said that there is no genuine issue for trial “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 106 S.Ct. at 2511. This standard “mirrors” the standard for a directed verdict. Id.; Celotex, 106 S.Ct. at 2553; United States v. General Motors Corp., 518 F.2d 420, 441-42 (D.C.Cir.1975).

The central issue here on motion for summary judgment is causation. Defendant alleges that plaintiff has made no showing that anyone can offer personal knowledge that any exposure to asbestos occurred in this case. I agree that plaintiff has not identified “specific facts” that would indicate such exposure occurred, and I certainly think that plaintiff has not made the kind of showing necessary to defeat a directed verdict motion. I would therefore grant defendant’s motion for summary judgment.

Plaintiff has identified two items that may bear on whether anyone has personal knowledge of exposure to asbestos in this case. One is plaintiff’s listing of T.R. Hoff, assistant secretary at a company where plaintiff’s husband had been employed for one year, as a potential witness in the case. The other is a letter from Hoff to his company’s insurer, which states from the company records the dates plaintiff’s husband had been employed, his general duties, and the names of the manufacturers of asbestos products used by the company during that period. Together, these items are thought to provide sufficient “specific facts” to defeat a summary judgment motion on the issue of causation.

It would seem apparent that the mere listing of a potential witness, without more, does not constitute setting forth specific facts. Here plaintiff has never claimed that Mr. Hoff has any personal knowledge that her husband was exposed to asbestos during his year of work at this company, and indeed did not specify the grounds of his possible testimony at all, except to say that he would be able to testify about “facts relevant to the subject matter of this lawsuit.” Docket Entry (“D.E.”) 161. On the other hand, plaintiff has failed ever to answer interrogatories served by defendant that asked for a variety of specific items of information she might have about her husband’s possible exposure to asbestos on any occasion. D.E. 47 at 14-16.

The majority concludes, however, that we should interpret plaintiff’s listing of Mr. Hoff as a witness in light of his letter to the insurance company, thereby finding enough evidence to stave off the equivalent of a motion for directed verdict on causation. This conclusion is incorrect for two reasons. First, the sum total of all this “evidence” falls far short of showing, or even suggesting, that anyone has been identified who can testify from personal knowledge about any asbestos exposure. That lack alone requires that defendant’s motion for summary judgment be granted.

In addition, and also dispositive, the letter itself is inadmissible as evidence and thus cannot be considered by this court in evaluating the summary judgment motion. Rule 56 indicates that a trial judge should decide a summary judgment motion based on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” Fed.R. Civ.P. 56(c), and “by examining the pleadings and the evidence before it and by interrogating counsel.” Id. 56(d). It is settled law that the judge may consider only these specific materials or other evidence that would be admissible at trial. Inadmissible evidence is not to be considered unless, like an affidavit, it is “otherwise provided for” in Rule 56. See Fed. R.Civ.P. 56(e); see also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2721 (1983) (“[T]he particular forms of evidence mentioned in the rule are not the exclusive means of presenting evidence on a Rule 56 motion. The court may consider any material that would be admissible or usable at trial.”); 6 J. Moore, Moore’s Federal Practice H 56.11[1.-8] (2d ed. 1972) (“[I]n addition to pleadings, depositions, admissions on file, answers of a party to interrogatories, and affidavits, which Rule 56(c) specifically enumerates, a court may consider oral testimony and any other or additional materials that would be admissible in evidence or otherwise usable *42at trial. Material that does not come within the above broad category should not be considered.”). The strength of this principle is shown by the manner in which a trial judge is supposed to treat affidavit testimony: if some of the testimony contained in the affidavit would be inadmissible if it were offered at trial (e.g., as hearsay), the judge is to consider only the portions that would be admissible at trial and excise the remainder. See 6A J. Moore, supra, ¶ 56.-22[1], at 56-1330 to 56-1331; 10A C. Wright, A. Miller & M. Kane, supra, § 2738, at 511.

Letters are not among the specific materials listed in Rule 56, and the Hoff letter is inadmissible hearsay. It was not made under oath, and does not purport to be based on personal knowledge. There has been some suggestion that it could fall within the “business records” exception to hearsay, see Fed.R.Evid. 803(6), but I think the suggestion is incorrect. Although the contents of the letter may have been gleaned from business records, the letter itself is not an item “kept in the course of a regularly conducted business activity,” where it “was the regular practice of that business activity to make the memorandum, report, record, or data compilation.” Id. Instead, the letter seems to have been written to respond to inquiries that were made in the course of this litigation. See Palmer v. Hoffman, 318 U.S. 109, 111-15, 63 S.Ct. 477, 479-81, 87 L.Ed. 645 (1943).

The majority refers to the widespread view that unopposed material may be considered in deciding a summary judgment motion. Maj. op. at 36. The record in this case shows, however, that defendant opposed the admissibility of the letter.1 At no stage of these proceedings has any party even suggested the contrary. Indeed, plaintiff’s brief concedes this point, stating that the trial court “apparently accepted Celotex’s argument that the documents submitted by Mrs. Catrett were irrelevant because they would not, themselves, be admissible at trial.” Supplemental Brief for Appellant on Remand at 7. I thus can find no tenable basis for the suggestion that this court should consider the Hoff letter in evaluating the summary judgment motion.

For these reasons, I think plaintiff has not carried her burden in resisting summary judgment. On the causation issue, despite more than two years for discovery, she has been unable to present the district court with any “specific facts” beyond the vague listing of a potential witness not claimed to have any personal knowledge about exposure.2 My concern is that the majority’s view may make decisions on summary judgment both more difficult and more uncertain because the majority’s rationale suggests that trial judges must consider various permutations of vague and inadmissible evidence in reaching those decisions. This indicates that the “directed verdict” standard for evaluating summary judgment motions does not apply only to the evidence currently before the trial court on the motion for summary judgment but also to evidence that may emerge in the later course of the proceedings. That amounts to an automatic and unrequested *43extension of the time that is available for plaintiff to produce admissible evidence. This approach represents a departure from the Supreme Court’s admonition that “[sjummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ ” Celotex Corp., 106 S.Ct. at 2555 (quoting Fed.R.Civ.P. 1). I respectfully dissent.

. The majority also points to documents that indicate business relationships between the defendant and one of the companies that employed plaintiffs husband. Maj. op. at 38-39. These documents are relevant on the causation issue, because if someone were able to testify from personal knowledge that plaintiffs husband was exposed to asbestos products during the time he worked for that company, these documents would help to establish some probability that the asbestos products he was exposed to were actually manufactured by the defendant. But these documents do not supply the crucial missing step on the causation issue, which involves specifying someone who can testify from personal knowledge about asbestos exposure. For the reasons given in the text, none of the other documents, including the Hoff letter, cures this omission.

15.6 Handout on Summary Judgment 15.6 Handout on Summary Judgment

Below is a link to a study guide outline of the summary judgment schematic in Justice Brennan's Celotex dissent that a former TA created a few years ago. It is optional. Feel free to disregard this document and make your own outline if you prefer.

Find the handout here (Word doc).

15.7 Scott v. Harris 15.7 Scott v. Harris

After Celotex (and the cases decided in that same term), district courts began to make greater use of summary judgment to dispose of cases prior to trial. One issue that arose with some frequency (including in my own six years in practice): when a solid amount of discovery evidence supports one side, but there is, say, a scintilla in opposition, does Rule 56 allow summary judgment? What is sufficient to create a genuine issue of material fact?

What about the case, for example, in which purportedly objective evidence (query how objective) supports one side, but the opposing litigant swears under oath to a different version of events? The Supreme Court addresses such a situation in the next opinion.

SCOTT v. HARRIS

No. 05-1631.

Argued February 26, 2007

Decided April 30, 2007

*373Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Ginsburg, Breyer, and Axrro, JJ., joined. Ginsburg, J., post, p. 386, and Breyer, J., post, p. 387, filed concurring opinions. Stevens, J., filed a dissenting opinion, post, p. 389.

Philip W. Savrin argued the cause for petitioner. With him on the briefs were Sun S. Choy and Orin S. Kerr.

Deputy Solicitor General Garre argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Jonathan L. Marcus, and Barbara L. Herwig.

Craig T Jones argued the cause for respondent. With him on the brief was Andrew C. Clarke.*

Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, and Michael Scodro, Deputy Solicitor General, by Craig J. Tillery, Acting Attorney General of Alaska, by Roberto J. Sánchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys *374General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Thomas F Reilly of Massachusetts, Michael A. Cox of Michigan, Jim Hood of Mississippi, Mike McGrath of Montana, Kelly A Ayotte of New Hampshire, Wayne Stenehjem of North Dakota, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W Corbett, Jr., of Pennsylvania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shwrtleff of Utah, William H. Sorrell of Vermont, Robert F. McDonnell of Virginia, and Patrick J. Crank of Wyoming; and for the National Association of Counties et al. by Richard Ruda, Charles A Rothfeld, Andrew J. Pincus, and Dan Kahan.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Hamilton P. Fox 111, Steven R. Shapiro, and Gerald R. Weber; for the National Association of Criminal Defense Lawyers by Jonathan D. Hacker, Nicole A Saharsky, and Pamela Harris; and for the National Police Accountability Project by Karen Blum, Howard Friedman, and Myong J. Joun.

A brief of amicus curiae was filed for the Georgia Association of Chiefs of Police, Inc., by Michael A Caldwell.

*374Justice Scalia

delivered the opinion of the Court.

We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?

In March 2001, a Georgia county deputy clocked respondent’s vehicle traveling at 73 miles per hour on a road with a 55-mile-per-hour speed limit. The deputy activated his blue flashing lights indicating that respondent should pull over. Instead, respondent sped away, initiating a chase down what *375is in most portions a two-lane road, at speeds exceeding 85 miles per hour. The deputy radioed his dispatch to report that he was pursuing a fleeing vehicle, and broadcast its license plate number. Petitioner, Deputy Timothy Scott, heard the radio communication and joined the pursuit along with other officers. In the midst of the chase, respondent pulled into the parking lot of a shopping center and was nearly boxed in by the various police vehicles. Respondent evaded the trap by making a sharp turn, colliding with Scott’s police car, exiting the parking lot, and speeding off once again down a two-lane highway.

Following respondent’s shopping center maneuvering, which resulted in slight damage to Scott’s police car, Scott took over as the lead pursuit vehicle. Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to terminate the episode by employing a “Precision Intervention Technique (‘PIT’) maneuver, which causes the fleeing vehicle to spin to a stop.” Brief for Petitioner 4. Having radioed his supervisor for permission, Scott was told to “‘[g]o ahead and take him out.’” Harris v. Coweta Cty., 433 F. 3d 807, 811 (CA11 2005). Instead, Scott applied his push bumper to the rear of respondent’s vehicle.1 As a result, respondent lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. Respondent was badly injured and was rendered a quadriplegic.

Respondent filed suit against Deputy Scott and others under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging, inter alia, a violation of his federal constitutional rights, viz. use *376of excessive force resulting in an unreasonable seizure under the Fourth Amendment. In response, Scott filed a motion for summary judgment based on an assertion of qualified immunity. The District Court denied the motion, finding that “there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury.” Harris v. Coweta Cty., No. 3:01-CV-148-WBH (ND Ga., Sept. 23,2003), App. to Pet. for Cert. 41a-42a. On interlocutory appeal,2 the United States Court of Appeals for the Eleventh Circuit affirmed the District Court’s decision to allow respondent’s Fourth Amendment claim against Scott to proceed to trial.3 Taking respondent’s view of the facts as given, the Court of Appeals concluded that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U. S. 1 (1985), and that the use of such force in this context “would violate [respondent’s] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [respondent’s] Fourth Amendment rights.” 433 F. 3d, at 816. The Court of Appeals further concluded that “the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers 'fair notice’ that ramming a vehicle under these circumstances was unlawful.” Id., at 817. The Court of Appeals thus concluded that Scott was not entitled to qualified immunity. We granted certiorari, 549 U. S. 991 (2006), and now reverse.

*377II

In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Saucier v. Katz, 533 U. S. 194, 201 (2001). If, and only if, the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established ... in light of the specific context of the case.” Ibid. Although this ordering contradicts “[o]ur policy of avoiding unnecessary adjudication of constitutional issues,” United States v. Treasury Employees, 513 U. S. 454, 478 (1995) (citing Ash-wander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring)), we have said that such a departure from practice is “necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established,” Saucier, supra, at 201.4 We therefore turn to the *378threshold inquiry: whether Deputy Scott’s actions violated the Fourth Amendment.

Ill

The first step in assessing the constitutionality of Scott’s actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and respondent’s version of events (unsurprisingly) differs substantially from Scott’s version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” United States v. Diebold, Inc., 369 U. S. 654, 655 (1962) (per curiam); Saucier, supra, at 201. In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff’s version of the facts.

There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.5 For example, the Court of Appeals adopted respondent’s assertions that, during the chase, “there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] remained in control of his vehicle.” 433 F. 3d, at 815. Indeed, reading the lower court’s opinion, one gets the impression that respondent, *379rather than fleeing from police, was attempting to pass his driving test:

“[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815-816 (citations omitted).

The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.6 We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous *380maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.7

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 586-587 (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., ATI U. S. 242, 247-248 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied *381on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment. Scott does not contest that his decision to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “seizure.” “[A] Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U. S. 593, 596-597 (1989) (emphasis deleted). See also id., at 597 (“If . . . the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). It is also conceded, by both sides, that a claim of “excessive force in the course of making [a]... ‘seizure’ of [the] person ... [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U. S. 386, 388 (1989). The question we need to answer is whether Scott’s actions were objectively reasonable.8

Respondent urges us to analyze this case as we analyzed Garner, 471 U. S. 1. See Brief for Respondent 16-29. We must first decide, he says, whether the actions Scott took *382constituted “deadly force.” (He defines “deadly force” as “any use of force which creates a substantial likelihood of causing death or serious bodily injury,” id., at 19.) If so, respondent claims that Garner prescribes certain preconditions that must be met before Scott’s actions can survive Fourth Amendment scrutiny: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape;9 and (3) where feasible, the officer must have given the suspect some warning. See Brief for Respondent 17-18 (citing Garner, supra, at 9-12). Since these Garner preconditions for using deadly force were not met in this case, Scott’s actions were per se unreasonable.

Respondent’s argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute “deadly force.” Gamer was simply an application of the Fourth Amendment’s “reasonableness” test, Graham, supra, at 388, to the use of a particular type of force in a particular situation. Garner held that it was unreasonable to kill a “young, slight, and unarmed” burglary suspect, 471 U. S., at 21, by shooting him “in the back of the head” while he was running away on foot, id., at 4, and when the officer “could not reason*383ably have believed that [the suspect]. . . posed any threat,” and “never attempted to justify his actions on any basis other than the need to prevent an escape,” id., at 21. Whatever Gamer said about the factors that might have justified shooting the suspect in that case, such “preconditions” have scant applicability to this case, which has vastly different facts. “Gamer had nothing to do with one car striking another or even with car chases in general____ A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Adams v. St. Lucie County Sheriff’s Dept., 962 F. 2d 1563, 1577 (CA11 1992) (Edmondson, J., dissenting), adopted by 998 F. 2d 923 (CA11 1993) (en banc) (per curiam). Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case. Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of “reasonableness.” Whether or not Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable.

In determining the reasonableness of the manner in which a seizure is effected, “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U. S. 696,703 (1983). Scott defends his actions by pointing to the paramount governmental interest in ensuring public safety, and respondent nowhere suggests this was not the purpose motivating Scott’s behavior. Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify *384the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. See Part III-A, swpra. It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent — though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, see Garner, supra, at 4, or pulling alongside a fleeing motorist’s car and shooting the motorist, cf. Vaughan v. Cox, 343 F. 3d 1323, 1326-1327 (CA11 2003). So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.10

*385But wait, says respondent: Couldn’t the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas Scott’s action — ramming respondent off the road — was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had respondent looked in his rearview mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn’t know, and would reappear down the road to intercept him; or perhaps they were setting up a roadblock in his path. Cf. Brower, 489 U. S., at 594. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.* 11

Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this *386invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

* * *

The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott's attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. The Court of Appeals’ judgment to the contrary is reversed.

It is so ordered.

Prior to this Court’s announcement of Saucier’s “rigid ‘order of battle,’ ” Brosseau v. Haugen, 543 U. S. 194, 201-202 (2004) (Breyer, J., concurring), we had described this order of inquiry as the “better approach,” County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998), though not one that was required in all cases. See id., at 858-859 (Breyer, J., concurring); id., at 859 (Stevens, J., concurring in judgment). There has been doubt expressed regarding the wisdom of Saueier’s decision to make the threshold inquiry mandatory, especially in cases where the constitutional question is relatively difficult and the qualified immunity question relatively straightforward. See, e. g., Brosseau, supra, at 201 (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari); id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting). See also Lyons v. Xenia, 417 F. 3d 565, 580-584 (CA6 2005) (Sutton, J., concurring). We need not address the wisdom of Saucier in this case, however, because the constitutional question with which we are presented is, as discussed in Part III-B, infra, easily decided. Deciding that question first is thus the “better approach,” Lewis, supra, at 841, n. 5, regardless of whether it is required.

Justice Stevens hypothesizes that these cars “had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights,” so that “[a] jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance.” Post, at 391. It is not our experience that ambulances and fire engines careen down two-lane roads at 85-plus miles per hour, with an unmarked scout car out in front of them. The risk they pose to the public is vastly less than what respondent created here. But even if that were not so, it would in no way lead to the conclusion that it was unreasonable to eliminate the threat to life that respondent posed. Society accepts the risk of speeding ambulances and fire engines in order to save life and property; it need not (and assuredly does not) accept a similar risk posed by a reckless motorist fleeing the police.

Respondent, like the Court of Appeals, defines this second precondition as “‘necessary to prevent escape,’” Brief for Respondent 17; 433 F. 3d 807, 813 (CA11 2005) (quoting Garner, 471 U. S., at 11). But that quote from Garner is taken out of context. The necessity described in Gamer was, in fact, the need to prevent “serious physical harm, either to the officer or to others.” Ibid. By way of example only, Gamer hypothesized that deadly force may be used “if necessary to prevent escape” when the suspect is known to have “committed a crime involving the infliction or threatened infliction of serious physical harm,” ibid., so that his mere being at large poses an inherent danger to society. Respondent did not pose that type of inherent threat to society, since (prior to the car chase) he had committed only a minor traffic offense and, as far as the police were aware, had no prior criminal record. But in this case, unlike in Garner, it was respondent’s flight itself (by means of a speeding automobile) that posed the threat of “serious physical harm ... to others.” Ibid.

The Court of Appeals cites Brower v. County of Inyo, 489 U. S. 593, 595 (1989), for its refusal to “countenance the argument that by continuing to flee, a suspect absolves a pursuing police officer of any possible liability for all ensuing actions during the chase,” 433 F. 3d, at 816. The only question in Brower was whether a police roadblock constituted a seizure under the Fourth Amendment. In deciding that question, the relative culpability of the parties is, of course, irrelevant; a seizure occurs whenever the police are “ ‘responsible] for the termination of [a person’s] movement,”’ 433 F. 3d, at 816 (quoting Brower, supra, at 595), regardless of the reason for the termination. Culpability is relevant, however, to the reasonableness of the seizure — to whether preventing possible harm to *385the innocent justifies exposing to possible harm the person threatening them.

Justice Ginsburg,

concurring.

I join the Court’s opinion and would underscore two points. First, I do not read today’s decision as articulating a mechanical, per se rule. Cf. post, at 389 (Breyer, J., concurring). The inquiry described by the Court, ante, at 383-385 and this page, is situation specific. Among relevant considerations: Were the lives and well-being of others (motorists, pedestrians, police officers) at risk? Was there a safer way, given the time, place, and circumstances, to stop the fleeing vehicle? “[AJdmirable” as “[an] attempt to craft an easy-to-apply legal test in the Fourth Amendment context [may be],” the Court explains, “in the end we must still slosh our way through the factbound morass of‘reasonableness.’” Ante, at 383.

Second, were this case suitable for resolution on qualified immunity grounds, without reaching the constitutional question, Justice Breyer’s discussion would be engaging. See post, at 387-389 (urging the Court to overrule Saucier v. Katz, 533 U. S. 194 (2001)). In joining the Court’s opinion, *387however, Justice Breyer apparently shares the view that, in the appeal before us, the constitutional question warrants an answer. The video footage of the car chase, he agrees, demonstrates that the officer’s conduct did not transgress Fourth Amendment limitations. See post this page. Confronting Saucier, therefore, is properly reserved for another day and case. See ante, at 377, n. 4.

Justice Breyer,

concurring.

I join the Court’s opinion with one suggestion and two qualifications. Because watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court’s opinion, ante, at 378, n. 5, and watch it. Having done so, I do not believe a reasonable jury could, in this instance, find that Officer Timothy Scott (who joined the chase late in the day and did not know the specific reason why the respondent was being pursued) acted in violation of the Constitution.

Second, the video makes clear the highly fact-dependent nature of this constitutional determination. And that fact dependency supports the argument that we should overrule the requirement, announced in Saucier v. Katz, 533 U. S. 194 (2001), that lower courts must first decide the “constitutional question” before they turn to the “qualified immunity question.” See id., at 200 (“[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged”). Instead, lower courts should be free to decide the two questions in whatever order makes sense in the context of a particular case. Although I do not object to our deciding the constitutional question in this particular case, I believe that in order to lift the burden from lower courts we can and should reconsider Saucier’s requirement as well.

Sometimes (e. g., where a defendant is clearly entitled to qualified immunity) Saucier’s fixed order-of-battle rule wastes judicial resources in that it may require courts to *388answer a difficult constitutional question unnecessarily. Sometimes (e.g., where the defendant loses the constitutional question but wins on qualified immunity) that order-of-battle rule may immunize an incorrect constitutional ruling from review. Sometimes, as here, the order-of-battle rule will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity. And frequently the order-of-battle rule violates that older, wiser judicial counsel “not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”). In a sharp departure from this counsel, Saucier requires courts to embrace unnecessary constitutional questions not to avoid them.

It is not surprising that commentators, judges, and, in this case, 28 States in an amicus brief have invited us to reconsider Saucier’s requirement. See Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275 (2006) (calling the requirement “a puzzling misadventure in constitutional dictum”); Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69-70 (CA1 2002) (referring to the requirement as “an uncomfortable exercise” when “the answer whether there was a violation may depend on a kaleidoscope of facts not yet fully developed”); Lyons v. Xenia, 417 F. 3d 565, 580-584 (CA6 2005) (Sutton, J., concurring); Brief for State of Illinois et al. as Amici Curiae. I would accept that invitation.

While this Court should generally be reluctant to overturn precedents, stare decisis concerns are at their weakest here. See, e. g., Payne v. Tennessee, 501 U. S. 808, 828 (1991) (“Considerations in favor of stare decisis” are at their weakest in eases “involving procedural and evidentiary rules”). The *389order-of-battle rule is relatively novel, it primarily affects judges, and there has been little reliance upon it.

Third, I disagree with the Court insofar as it articulates a per se rule. The majority states: “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Ante, at 386. This statement is too absolute. As Justice Ginsburg points out, ibid., whether a high-speed chase violates the Fourth Amendment may well depend upon more circumstances than the majority’s rule reflects. With these qualifications, I join the Court’s opinion.

Justice Stevens,

dissenting.

Today, the Court asks whether an officer may “take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders.” Ante, at 374. Depending on the circumstances, the answer may be an obvious “yes,” an obvious “no,” or sufficiently doubtful that the question of the reasonableness of the officer’s actions should be decided by a jury, after a review of the degree of danger and the alternatives available to the officer. A high-speed chase in a desert in Nevada is, after all, quite different from one that travels through the heart of Las Vegas.

Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly traveled road in Georgia where no pedestrians or other “bystanders” were present, buttressed by uninformed speculation about the possible consequences of discontinuing the chase, eight of the jurors on this Court reach a verdict that differs from the views of the judges on both the District Court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are. The Court’s justification for this unprecedented departure from our well-settled standard of *390review of factual determinations made by a district court and affirmed by a court of appeals is based on its mistaken view that the Court of Appeals’ description of the facts was “blatantly contradicted by the record” and that respondent’s version of the events was “so utterly discredited by the record that no reasonable jury could have believed him.” Ante, at 380.

Rather than supporting the conclusion that what we see on the video “resembles a Hollywood-style car chase of the most frightening sort,” ibid.,1 the tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue. More importantly, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the police officers’ decision to use deadly force to bring the chase to an end was reasonable.

Omitted from the Court’s description of the initial speeding violation is the fact that respondent was on a four-lane portion of Highway 34 when the officer clocked his speed at 73 miles per hour and initiated the chase.2 More significantly — and contrary to the Court’s assumption that respondent’s vehicle “force[d] cars traveling in both directions *391to their respective shoulders to avoid being hit,” ante, at 379 — a fact unmentioned in the text of the opinion explains why those cars pulled over prior to being passed by respondent. The sirens and flashing lights on the police cars following respondent gave the same warning that a speeding ambulance or fire engine would have provided.3 The 13 cars that respondent passed on his side of the road before entering the shopping center, and both of the cars that he passed on the right after leaving the center, no doubt had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights before respondent or the police cruisers approached.4 A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle.

The police sirens also minimized any risk that may have arisen from running "multiple red lights,” ibid. In fact, respondent and his pursuers went through only two intersections with stop lights and in both cases all other vehicles in sight were stationary, presumably because they had been warned of the approaching speeders. Incidentally, the videos do show that the lights were red when the police cars passed through them but, because the cameras were farther away when respondent did so and it is difficult to discern the color of the signal at that point, it is not entirely clear that *392he ran either or both of the red lights. In any event, the risk of harm to the stationary vehicles was minimized by the sirens, and there is no reason to believe that respondent would have disobeyed the signals if he were not being pursued.

My colleagues on the jury saw respondent “swerve around more than a dozen other cars,” and “force cars traveling in both directions to their respective shoulders,” ibid., but they apparently discounted the possibility that those cars were already out of the pursuit’s path as a result of hearing the sirens. Even if that were not so, passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction. At no point during the chase did respondent pull into the opposite lane other than to pass a car in front of him; he did the latter no more than five times and, on most of those occasions, used his turn signal. On none of these occasions was there a car traveling in the opposite direction. In fact, at one point, when respondent found himself behind a ear in his own lane and there were cars traveling in the other direction, he slowed and waited for the cars traveling in the other direction to pass before overtaking the car in front of him while using his turn signal to do so. This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as “close calls.”

In sum, the factual statements by the Court of Appeals quoted by the Court, ante, at 378-379, were entirely accurate. That court did not describe respondent as a “cautious” driver as my colleagues imply, ante, at 380, but it did correctly conclude that there is no evidence that he ever lost control of his vehicle. That court also correctly pointed out that the incident in the shopping center parking lot did not create any risk to pedestrians or other vehicles because the chase occurred just before 11 p.m. on a weekday night and the center was closed. It is apparent from the record (in-*393eluding the videotape) that local police had blocked off intersections to keep respondent from entering residential neighborhoods and possibly endangering other motorists. I would add that the videos also show that no pedestrians, parked cars, sidewalks, or residences were visible at any time during the chase. The only “innocent bystanders” who were placed “at great risk of serious injury,” ibid., were the drivers who either pulled off the road in response to the sirens or passed respondent in the opposite direction when he was driving on his side of the road.

I recognize, of course, that even though respondent’s original speeding violation on a four-lane highway was rather ordinary, his refusal to stop and subsequent flight was a serious offense that merited severe punishment. It was not, however, a capital offense, or even an offense that justified the use of deadly force rather than an abandonment of the chase. The Court’s concern about the “imminent threat to the lives of any pedestrians who might have been present,” ante, at 384, while surely valid in an appropriate case, should be discounted in a case involving a nighttime chase in an area where no pedestrians were present.

What would have happened if the police had decided to abandon the chase? We now know that they could have apprehended respondent later because they had his license plate number. Even if that were not true, and even if he would have escaped any punishment at all, the use of deadly force in this ease was no more appropriate than the use of a deadly weapon against a fleeing felon in Tennessee v. Garner, 471 U. S. 1 (1985). In any event, any uncertainty about the result of abandoning the pursuit has not prevented the Court from basing its conclusions on its own factual assumptions.5 *394The Court attempts to avoid the conclusion that deadly force was unnecessary by speculating that if the officers had let him go, respondent might have been “just as likely” to continue to drive recklessly as to slow down and wipe his brow. Ante, at 385. That speculation is unconvincing as a matter of common sense and improper as a matter of law. Our duty to view the evidence in the light most favorable to the non-moving party would foreclose such speculation if the Court had not used its observation of the video as an excuse for replacing the rule of law with its ad hoc judgment. There is no evidentiary basis for an assumption that dangers caused by flight from a police pursuit will continue after the pursuit ends. Indeed, rules adopted by countless police departments throughout the country are based on a judgment that differs from the Court’s. See, e. g., App. to Brief for Georgia Association of Chiefs of Police, Inc., as Amicus Curiae A-52 (“During a pursuit, the need to apprehend the suspect should always outweigh the level of danger created by the pursuit. When the immediate danger to the public created by the pursuit is greater than the immediate or potential danger to the public should the suspect remain at large, then the pursuit should be discontinued or terminated. . . . [P]ursuits should usually be discontinued when the violator’s identity has been established to the point that later apprehension can be accomplished without danger to the public”).

Although Gamer may not, as the Court suggests, “establish a magical on/off switch that triggers rigid preconditions” *395for the use of deadly force, ante, at 382, it did set a threshold under which the use of deadly force would be considered constitutionally unreasonable:

“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” 471 U. S., at 11-12.

Whether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.6 Here, the Court has usurped the jury’s factfinding function and, in doing so, implicitly labeled the four other judges to review the case unreasonable. It chastises the Court of Appeals for failing to “vie[w] the facts in the light depicted by the videotape” and implies that no reasonable person could view the videotape and come to the conclusion that deadly force was unjustified. Ante, at 380-381. However, the three judges on the Court of Appeals panel apparently did view the videotapes entered into evidence7 and described a very different version of events:

“At the time of the ramming, apart from speeding and running two red lights, Harris was driving in a non-*396aggressive fashion (i. e., without trying to ram or run into the officers). Moreover, . . . Scott’s path on the open highway was largely clear. The videos introduced into evidence show little to no vehicular (or pedestrian) traffic, allegedly because of the late hour and the police blockade of the nearby intersections. Finally, Scott issued absolutely no warning (e. g., over the loudspeaker or otherwise) prior to using deadly force.” 433 F. 3d 807, 819, n. 14 (CA11 2005).

If two groups of judges can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with this Court’s characterization of events. Moreover, under the standard set forth in Gamer, it is certainly possible that “a jury could conclude that Scott unreasonably used deadly force to seize Harris by ramming him off the road under the instant circumstances.” 433 F. 3d, at 821.

The Court today sets forth a per se rule that presumes its own version of the facts: “A police officer’s attempt to terminate a dangerous high-speed ear chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Ante, at 386 (emphasis added). Not only does that rule fly in the face of the flexible and case-by-case “reasonableness” approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989), but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any “innocent bystande[r].”8 In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded as*397sumptions are unacceptable, particularly when less drastic measures — in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker — could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.

I respectfully dissent.

In noting that Scott’s action “was certain to eliminate the risk that respondent posed to the public” while “ceasing pursuit was not,” the Court prioritizes total elimination of the risk of harm to the public over the risk that respondent may be seriously injured or even killed. Ante, at 385 (emphasis in original). The Court is only able to make such a statement *394by assuming, based on its interpretation of events on the videotape, that the risk of harm posed in this case, and the type of harm involved, rose to a level warranting deadly force. These are the same types of questions that, when disputed, are typically resolved by a jury; this is why both the District Court and the Court of Appeals saw fit to have them be so decided. Although the Court claims only to have drawn factual inferences in respondent's favor “to the extent supportable by the record,” ante, at 381, n. 8 (emphasis in original), its own view of the record has clearly precluded it from doing so to the same extent as the two courts through which this case has already traveled, see ante, at 376,378-379.

15.8 Notes following Scott 15.8 Notes following Scott

1) You can have a look at the video at issue in the above case at: http://www.supremecourt.gov/media/media.aspx/ (look for the 2006 term). What are your thoughts? Do you agree that a reasonable jury could only have found that the plaintiff's driving in this case posed a danger to the public?

2) In a study, 1000+ people were asked their views on the Scott video. While a majority of viewers saw the clip in the same way as the Court, there was also a significant minority that did not. This minority group tended to consist disproportionally of Black Americans, low-income Americans, North-easterners, and also Americans who self-identified as Democrats. These groups tended generally to view evidence more favorably to the plaintiff. See Whose Eyes are you Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism - Harvard Law Review.

Given this, how do you feel about the fact that Scott was decided on summary judgment? Should the plaintiff here have received a chance to have his day in front of a (potentially) more diverse jury than the Supreme Court justices?

15.9 Excerpts from the Deposition of Paula Jones 15.9 Excerpts from the Deposition of Paula Jones

The following deposition is from Paula Corbin Jones in the Jones v. Clinton litigation. It is a critical supplement to the materials in The Power of Procedure.

We will use the discovery materials in The Power of Procedure, as well as this deposition, to discuss arguments that one party or the other might make in an appeal from Judge Wright's grant of summary judgment in the case. You will consult with classmates who sit near you to discuss such arguments. So, be prepared to make an argument for one side or the other, using specific facts from the available materials. For the purposes of these arguments, we will assume that Plaintiff Jones is pursuing a cause of action with the following three elements:

1) She refused a "request" (I would use a different word) from President Clinton to engage in a sexual relationship on a particular day in the Excelsior Hotel;

2) Her refusal caused . . .

3) Employment harm in the form of lost promotions, discouragement from seeking promotions or better jobs, or lost wages or benefits.

Optional: For those interested, this is a statement regarding why I teach Jones v. Clinton.

Optional: For those interested, this is a statement on the case from one of your TAs, Nora Van Horn.

These links are also available on your syllabus.

BY MR. BENNETT:

Q. I'm sorry. If I forgot to ask you that question. I don't have as good a memory as your counsel. But who was your supervisor there?

A. I'm trying to think. I don't remember who she was.

Q. Do you remember what year you worked there?

A. Probably 1988.

Q. And you were fired from that job as well, weren't you?

A. Well, it was actually a mutual thing, but yes. On the paperwork I believe it was that I was fired.

Q. And the reason they gave you for firing you?

A. For being late.

Q. And you were late a lot, weren't you?

A. Yes.

Q. All right. After you worked at Dillard's, where did you work?

A. Hertz car rental.

Q. And where was that?

A. At the Little Rock airport.

Q. And how long were you employed there? Do you remember?

A. About four months.

Q. And what did you do there?

A. I rented cars.

Q. Okay. And you were fired from that job too; is that right?

(Pages 25 to 32 are missing)

... the state gives to all employees before they hire them.

Q. And have you had an opportunity since you answered the interrogatories to review your employment records at AIDC?

A. No.

Q. You knew I'd be asking you questions today about your employment history at AIDC, didn't you?

MR. CAMPBELL: Objection. Assumes facts not in evidence and –

BY MR. BENNETT:

Q. Did you?

MR. CAMPBELL: – asks for speculation and conjecture as to what might be in the mind of another.

BY MR. BENNETT:

Q. I'm asking you what was in your mind?

A. No.

Q. You didn't think I would be asking you about your employment?

A. I didn't really think about what you would be asking me.

Q. Okay. Who did you first talk to about getting a job at AIDC?

A. I believe it was Pam Blackard.

Q. And is Pam the lady whose deposition was taken in these offices a short while ago?

A. Yes.

Q. And she's one of your best friends; is that right?

(Page 34 is missing)

A. I have no idea.

Q. All right. When did you start work at AIDC?

A. I think it was March of '90.

Q. March of '90?

A. I'm not sure, actually. I'm really not.

Q. Okay. Do you know how long you worked there?

A. Two years.

Q. And were you fired from there?

A. No.

Q. Did they force you out?

A. In a way.

Q. How?

A. I could tell that there was – I had applied for different other jobs within the agency and my supervisor would always try to discourage me, try to keep me over on that corner saying that I could grow and make something of myself if I stay over there and let her train me. And I never went anywhere. There was a lot of hostility it seemed between Cherry Duckett and I. She never would speak to me. I'd try to – I'd talk to anybody, you know, very outgoing. I would try to talk to her. There's several things that – I'm not a hyper – one of those schizophrenics that thinks that's something's wrong all the time. And you can tell when there's a lot of static in an office place when you go there every day for two years.

Q. Are there any other things you haven't just testified about? Tell me everything that causes you to think that they wanted you to leave. Is that what you are saying? They wanted you to leave?

MR. CAMPBELL: Objection. Multifarious.

BY MR. BENNETT:

Q. Is that what you're saying? Are you saying that they wanted you to leave?

A. I feel that they wanted to keep me in that area so I wouldn't get outside their little wing to where they could control me and make sure that I stayed right there and couldn't upgrade myself at all. Absolutely.

Q. All right. Now who do you think wanted to control you?

A. Either Dave Herrington or Cherry Duckett.

Q. Did you ever talk to Dave Herrington?

A. Very seldom.

Q. Did Dave Herrington ever say anything to you to suggest that he wanted to control you?

A. We never talked at length. It was just "hi" or something like that. That was it. Never had any conversations.

Q. Okay. Well now, who else do you think tried to control you.

A. Clydine Pennington.

Q. And was she your supervisor for the whole two years you were there?

A. Yes.

Q. Why did Clydine Pennington want to control you, do you know?

A. I don't know.

Q. What specific job did you apply for?

A. I applied for document examiner, document examiner, that was my initial thing that I had applied for.

Q. And you got that job?

A. Yes.

Q. But you have indicated in your answer – previous answers to me that in a way they wanted you out because you couldn't get certain positions you wanted. Did I understand you correctly?

A. Correct.

Q. And I'm asking you what those other positions were that you applied for that you didn't get. Would you give me specifics?

A. It was a grade higher, that I could make more pay. It was something that I know that maybe could broaden my skills and help me grow and I would try to apply for them because document examiner was at the very low entry level and I wanted to try to grow. And each time I would try to do that, I would talk to my supervisor about it and she would always discourage me and make me believe that I could grow within the administrative services, which in fact I didn't. I got degrade – downgraded.

Q. All right. Now what higher grade were you trying to get to?

A. Just the next grade. You know, there's always a pay level difference when you go to another step and another grade and that's want I was wanting.

Q. What was that grade?

A. I really don't know. It was higher than the grade that I was at and I don't remember what grade level I was at when I was hired.

Q. Do you know what grade level you were at?

A. No.

Q. And you don't know what the higher grade level was?

A. No. Ten or 11 maybe. Ten or – I don't recall exactly how it went now.

Q. Do you know what the qualifications were for the next higher grade?

A. Yes.

Q. What were they?

A. Well, it was the qualifications that I knew that I could – that I was qualified for. It was for typing and different things. It just had a higher grade level. There might not have been much of a job difference or in your job duties, but it would have a higher grade level. According to which position of the building, you know, an area that it was in.

Q. Did you ever write a letter or a request to any or your supervisors asking that you be permitted to apply for a higher grade?

A. I don't know if I put it in writing to Clydine Pennington, but I know I did two different times orally went into her office and asked her and told her what I would like to do, would it be okay with her, because I felt that I wanted to tell her instead of just leaving out of the department without her knowing. I was trying to be nice to her. And she would always discourage me. "No, you stay over here. We want to keep you over here. We like you. We want you to stay over here. You will grow with us. You stay over here and we'll teach you everything." That's how she would get me to stay. But then when I stayed, nothing ever happened.

Q. All right. Now when was the first conversation you had with Ms. Pennington, do you remember?

A. No.

Q. Do you remember when the second one was?

A. No.

Q. Do you remember exactly what you said to Ms. Pennington on either of those occasions?

A. What I repeated just a minute ago.

Q. Do you remember exactly what she said to you?

A. Yeah. She would tell me, "We like you over here. We want to keep you over here. We want to – if you stay over here, Paula, we can train you and help you grow with the company and we want to keep you over here." She would put it that way.

Q. Now on July 1st, 1991, you received a cost-of-living increase, didn't you?

A. Probably. I don't know what date it was. But I know I received what everybody else got each year.

Q. Now also on July 1st, 1991, you were upgraded from a Grade 9 to a Grade 11, the very grade you mentioned, weren't you?

A. I don't recall.

Q. Well, do you dispute that that's what the record show?

MR CAMPBELL: Objection. No foundation. No evidence in the record.

BY MR. BENNETT:

Q. Do you dispute – you can answer.

A. No.

Q. So you did get a Grade 11, didn't you?

A. That's what I'm saying. I don't really know how the grades went. I don't know how the grades went. I don't know what I came in as and I don't know what I left as. So I don't know.

Q. Well, you went from, on July 1, 1991, according to the records, you went from a Grade 9 to a Grade 11. Did you ever apply for a grade 12 or 13 or 14?

MR CAMPBELL: Objection. No foundation. No evidence in the record.

BY MR. BENNETT:

Q. Did you ever apply for a grade higher than 11?

A. Yes. I believe I did.

Q. When?

A. I don't know. I just – those few times when I would talk to Clydine and she would say that, I would go ahead and fill out an application maybe or something.

Q. All right. And on March 11th, 1992, you received a merit increase?

A. Um-huh.

Q. Didn't you?

A. Probably. That's what everybody else received too.

Q. And on –

A. Cost-of-living-raise.

Q. And on July – no. I said merit increase.

A. Oh, I don't what that is.

Q. You know there's a difference between a merit increase and a cost-of-living increase, you know that?

A. No.

Q. You don't know that you got both cost-of-living increases and merit increases when you worked at AIDC?

A. I don't know if I did or not.

Q. You resigned on February 2nd, 1993; is that correct?

A. Yes.

Q. You weren't fired, were you?

A. No.

Q. You weren't terminated, were you?

A. No.

Q. At no time that you worked for AIDC did you ever get demoted in pay, did you?

A. I'm not sure actually. I don't think so.

Q. Did they ever decrease your grade at any time at AIDC?

A. I think they did.

Q. When?

A. When I came back from maternity leave.

Q. All right. You think you went down in grade?

A. I was thinking I did, yes.

Q. What grade did you go down to?

A. To like a 9 or 10 or something like that, it seemed like.

Q. If I were to tell you that the records show that you didn't go down a grade, would you dispute that?

MR. CAMPBELL: Objection. Assumes facts not in evidence. No foundation.

THE WITNESS: Yeah.

BY MR BENNETT:

Q. You would dispute that?

A. Yes, I would.

Q. Do you know how much money you made before you went on maternity leave?

A. No, I don't.

Q. Do you know how much money you made after you came back from maternity leave?

A. No, I don't.

Q. At any time during the period you worked at AIDC, did anybody at AIDC ever mention to you the alleged incident with Governor Clinton?

MR. CAMPBELL: Objection. Ambiguous, vague, global. There's a number of alleged incidents with Governor Clinton.

BY MR. BENNETT:

Q. On the incident – the incident which allegedly occurred at the Excelsior Hotel on May 8th, 1991, did anybody at AIDC ever mention to you at any point in time while you worked there?

A. Pam Blackard.

Q. How did Pam Blackard know about it?

A. Because she was there.

Q. She wasn't in the room, was she?

A. No. But she was at the conference and knew what had took place that day.

Q. But you told Pam Blackard, didn't you?

A. What went on in the room?

Q. Yes.

A. Yes.

Q. You didn't tell her everything that went on in the room, though, did you?

A. Yes. Eventually. Yes, I did.

Q. At the time?

A. Oh, no, not at the time.

Q. All right. Now you were here for Pam Blackard's deposition, weren't you?

A. Yes.

Q. And did you hear Pam Blackard testify that she never told anybody at AIDC, that to swore her to secrecy, or words to that effect?

A. Yes.

Q. Do you believe Pam Blackard wouldn't have told anybody?

A. Yes. I believe that.

Q. Other than Pam Blackard, did you tell anybody at AIDC?

A. No, I did not.

Q. All right. Now my question to you is, during the period of time that you worked at AIDC, did any of your supervisors or anyone else mention to you that they were aware of the incident which allegedly occurred in the room at the Excelsior Hotel?

A. No.

Q. Did anybody say to you that you weren't getting a promotion because you wouldn't give sex to Governor Clinton?

A. No.

Q. Did anyone ever say to you that if you gave sex to Governor Clinton that you would get promoted or get a raise or get a better job?

A. No. But I'm sure they would never say that if they did know about it.

MR. BRISTOW: Objection. It's not responsive.

BY MR. BENNETT:

Q. Do you know of anybody at AIDC who knew about this incident other – let me finish – other than Pam Blackard?

A. Not to my knowledge. Personally, nobody mentioned it to me. That doesn't mean they didn't know.

Q. You don't know of anybody, though, do you?

A. Un-uh.

Q. How did you and Ms. Pennington get along during the two years?

A. At first we were – I really liked her at first. She was really nice and everything. But it seemed like after a few months, it started changing. She was more – not as friendly as she used to have been. She liked to talk too, you know. She had to go around to everybody's desk and chat and talk and stuff.

Q. Did Ms. Pennington interview you for your job?

A. Yes.

Q. Did you tell Ms. Pennington at the time of your interview that you had been fired from these several jobs?

A. If she asked me, yes, I did.

Q. On the application there is a line asking you the reasons for leaving, wasn't there?

MR. CAMPBELL: Objection. Objection. No foundation. Assumes facts not in evidence.

BY MR. BENNETT:

Q. Do you know if the application had a line where you were supposed to say why you left your prior employment?

A. No, I don't know.

Q. You didn't fill that out, did you?

A. I don't know if I did or not.

Q. Is it your testimony that if – that you – if Clydine Pennington asked you why you left those other jobs, you would have told her you were fired from some of them; is that correct?

A. I would have told her, yes, if she asked me.

Q. Did you tell Ms. Pennington that your experience in your other jobs was such that older women didn't like you?

A. What are you referring to?

Q. When you were interviewed by Ms. Pennington –

A. What older women?

Q. Well, I don't know. I'm asking you. Did you ever tell Ms. Pennington that in your other jobs you had difficulty with other older women?

A. In one job.

Q. Which job was that?

A. Hertz.

Q. And what did you tell Ms. Pennington?

A. I don't recall telling her anything actually.

Q. Now when you left, do you remember – AIDC – do you remember the month and the year you left?

A. AIDC?

Q. Um-huh.

A. I left in '93, probably February of '93.

Q. You left right before your second anniversary; is that right?

A. No.

MR. CAMPBELL: Objection. Misstates the evidence in the record.

BY MR. BENNETT:

Q. You may answer the question.

A. What anniversary are you talking about?

Q. When did you start at AIDC?

A. In March, I believe.

Q. Of what year?

A. Of '90?

Q. '91.

A. '91, something like that.

Q. And you left when? In February of '93; is that right?

A. I believe that's correct.

Q. So had you stayed another month, it would have been two years there. That's what I meant by anniversary. Is that right?

A. Yes. Yes. You're right.

Q. And you indicated to people at AIDC that you were looking for federal employment; is that correct, when you left?

A. No.

Q. You never told anybody that?

A. I never said that.

Q. Did you tell people that you were moving because your husband's job had changed?

A. Yes.

Q. And who did you tell that to?

A. I don't know. Just my friends and stuff probably and probably told my supervisor that I was going to quit.

Q. And what reasons did you give them for quitting?

A. Because my husband got transferred and we were moving to California.

Q. Was that true?

A. Absolutely.

Q. Now in the last few days at AIDC, you got in a big argument with Ms. Pennington about taking leave without pay; is that correct?

A. No. I don't recall that.

Q. Do you remember having an argument with anybody about your taking leave without pay?

A. No. I don't recall that.

Q. Do you remember calling Ms. Pennington a bitch?

A. I've never called her that.

Q. Do you remember yelling at her and telling her that she and AIDC, you'd get even with them?

A. No. Are you talking about this while I was still working with her?

Q. Right at the end, yeah.

A. No. This is after I quit.

Q. Oh. tell me about that.

A. This incident took place after I quit.

Q. Okay. Tell me what happened.

A. This is when I went back to clean out my desk after I had done quit AIDC. I had a confrontation with Dave Herrington and Clydine Pennington. I brought them both together so I could express the feelings that I had encountered while I was working there of how I felt that I was being treated, mistreated. And that's where that incident took place.

Q. Tell me, where did this take place?

A. Out in the – kind of like a hall area. There was a whole bunch of like dividers and stuff. It wasn't like office rooms. And I just did it right out there.

Q. And what did you say to Mr. Herrington and Ms. Pennington?

A. I explained to Mr. Herrington, whether he was aware of it or not, how Ms. Pennington treated me and that she was – I always tried to get jobs. I brought that up. And nobody would let me try to get another job and better myself. And I just spewed on them really. Because I was just very upset from how I had been treated up there by trying to better myself.

Q. What do you mean you "spewed on them"?

A. Well, just – I was upset and I was telling them and I wanted Mr. Herrington to know how Ms. Pennington was and I didn't feel that Ms. Pennington was a very good supervisor and I was just telling – I don't recall everything that was said. I just know that I wanted Mr. Herrington to know what Clydine Pennington, how I felt about the way I had been treated over in that section, whether he was aware of it or not, I wanted him to know that before I left the building.

Q. And did you yell in Ms. Pennington's presence?

A. Oh, I'm sure I did raise my voice probably.

Q. Did you use profanity?

A. I don't recall if I ever used any curse words.

Q. What did Ms. Pennington say when you spewed on her?

A. She – I think she tried to talk right back and defend herself and she got loud too as well. I think Mr. Herrington just kind of was shocked and surprised and was listening to both sides of it and everything.

Q. What did Mr. Herrington say?

A. I don't recall. I just know that he wished me well and that he was sorry that it turned out the way it did. That's what he had said. Something to that effect.

Q. You had quit some days before; is that right?

A. Yes.

Q. Do you remember how long before?

A. Maybe a few days or so before.

Q. Had you given them notice that you were going to quit because of you husband's transfer to California?

A. If I recall, it seems like they gave me a going away party thing. Yeah. They have it in a conference room and people in the thing, they had cake or whatever to wish me well or whatever.

Q. So you had told somebody that you were quitting and leaving?

A. Oh, yes. Yes. I told Clydine about the possible move.

Q. And what did she say to you?

A. I don't recall what she said to me.

Q. Tell me a little bit about this going-away party.

A. They would just have like snacks and different people from each section would bring snacks or dip or something and they would say good-bye and that would be about it.

Q. Was Ms. Pennington there?

A. I'm sure. I don't know. I don't recall. I'm sure she was.

Q. A lot of people were there?

A. I think so.

Q. Have a good time?

A. In and out. In and out. I mean, there wasn't a whole bunch of people there at one time.

Q. Have a good time at the party?

A. I don't recall. It wasn't a party. It was just, you know, to say bye and everybody to eat, you know.

Q. But it was a friendly gathering?

A. Yes.

Q. Was Pam Blackard there?

A. I don't recall.

Q. During this incident that you described where you spewed on Ms. Pennington, do you recall yelling at Mr. Herrington?

A. No. I don't think so. He was just listening. I was voicing to him how she – how I felt the way I had been treated by Ms. Pennington and he was very nice to listen.

Q. You didn't mention anything at that time, did you, about this alleged incident which occurred at the Excelsior Hotel with Governor Clinton?

A. Oh, no.

Q. Now tell me about your maternity leave. Just how many maternity leaves had you taken?

A. One.

Q. For just one child?

A. Right.

Q. The second child was born after you left; is that right?

A. Yeah. A long time after.

Q. And when you returned to work after maternity leave, did your duties change?

A. Yes, they did.

Q. Tell me how your duties changed.

A. I know I read the Arkansas handbook, state employee Arkansas handbook, before I left on maternity leave and I know I had six weeks. Well, in the Arkansas handbook under maternity leave, it stated that you are to return back to your same position after six weeks' leave and unless there was a reduce in staff or something like that. I don't remember the exact words. And when I came back, none of them called or nothing like that. I don't think I ever received a call from Clydine Pennington or anybody to tell me they were making changes while I was no longer – while I wasn't there. And when I came back, I no longer was at my desk. They had moved me completely to sit right outside Clydine's office, so she could watch me at all times. I was sitting right out front. And I didn't have any work to do. My work had been gone. I was sitting there doing nothing.

Q. All right. Now you learned when you went back that there had been some structural changes at AIDC, didn't you?

A. Like structural, what changes, what do you mean? As far as –

Q. That they had made some changes in functions in departments.

A. No, not that I know of. Just maybe – just mine. Just mine.

Q. Well, did you learn that they consolidated purchasing department responsibilities?

A. That's what they did, yes. Because that's what I was doing.

Q. And now, Mrs. Jones, isn't it a fact that when you came back, there was no change in your salary, was there?

A. No, there was not.

Q. There was no change in you supervisor, was there?

A. No. But I would just wonder why they would –

Q. There was no change in your title, was there?

A. – move me.

MR. CAMPBELL: Objection, counsel. Let the witness finish her answer.

BY MR. BENNETT:

Q. I'm sorry. I apologize.

A. Yeah, there was. I don't know what I was called. Probably a nobody sitting out in front of Clydine's office. Because Pam Hood got my job. And what is amazing to me is why it took place while I was on six months maternity leave when they could have done it before or after when I could have been there. They did it while I was away and unaware of what was going on.

Q. What was your title before you went on maternity leave?

A. Purchasing assistant.

Q. What was your title when you came back?

A. I don't know. I was not the purchasing agent anymore.

Q. Well, you still worked on purchasing things, didn't you?

A. No. I don't believe I did. That was all given to Pam Hood.

Q. Didn't you work on data both before and after you – the input of data?

A. No. Actually I worked for personnel at that point. I input applications that were brought in to AIDC for employment and that's what I did all day long. I sat there and input applications into the database. That's all I did.

Q. That's when you came back?

A. Right. I did no longer do purchasing at all.

Q. But when you were working in purchasing before you left, you were putting purchasing order, that's data input –

A. Right.

Q. – involving purchasing orders, right?

A. Um-huh.

Q. Is that correct?

A. Um-huh.

Q. You have to answer it –

A. That was my job. Oh, I'm sorry. Yes.

Q. So in both instances, you were doing data input; is that right?

A. Yes. But that was not my job title before I left. I had – I was a purchasing assistant. When I came back, I was no longer dealing with purchasing department, period. Without me transferring or asking to be moved, I was moved without anybody asking me if that's what I wanted to do.

Q. Now did you know what Pam Hood's title was?

A. She was the purchasing – I'm not really sure. Something with purchasing. She did all the major orders for the office supplies and stuff.

Q. And are you aware that she applied for that job?

A. That she did?

Q. Um-huh.

A. No.

Q. How did you get along with your co-workers at AIDC?

MR. CAMPBELL: Objection. Overbroad and global.

THE WITNESS: In general just, you know, the ones that I liked, I mean, we got along pretty good. I talked to everybody around.

BY MR. BENNETT:

Q. Were there any there that you didn't get along with particularly?

MR. CAMPBELL: Objection. Overbroad as to time.

BY MR. BENNETT:

Q. During the two-year period that you worked there.

A. Not really. Just, you know, working in a place for a while, there's always going to be talk or, you know, something, but, no, I can't think of anything specific.

Q. Did Ms. Pennington during the two-year period ever criticize you or reprimand you for any of you activities?

A. I don't recall at this moment. I don't recall right at this moment if she did or not.

Q. Did she ever reprimand you about your tardiness?

A. No.

Q. In two years, she never reprimanded you about your tardiness?

MR. CAMPBELL: Objection. Asked and answered.

MR. BENNETT:

Q. You can answer.

A. She may have talked to me about it, but I never got anything, I don't think any paperwork, or anything written up as far as I remember.

Q. I'm not asking you about paperwork. I'm asking you –

A. Okay. Yeah. She talked to me about it. She was late herself and she would bring me in there, "I know. I'm late too. I live out there by you and we have that long traffic," she said, "and I'm guilty of it too," she said, "but we've got to get us here, you know, sooner," or whatever and that's what the conversations, how they were.

Q. And she reprimanded you several times about your being late; isn't that right?

MR. CAMPBELL: Objection. Misstates the prior testimony.

MR. BENNETT: I'm not trying to state prior testimony.

BY MR. BENNETT:

Q. Didn't she reprimand you several times?

MR. CAMPBELL: Same objection.

BY MR. BENNETT:

Q. You may answer.

A. I don't recall.

Q. Did Ms. Pennington ever criticize you or reprimand you about the way you dressed?

A. No.

Q. Did anybody ever reprimand you about the way you dressed?

MR. CAMPBELL: Objection. Overbroad as to time and place.

BY MR. BENNETT:

Q. You know the place I'm talking about, don't you?

A. What are you talking about?

Q. AIDC.

A. Oh, yes.

Q. And you know the time I'm talking about, don't you? The two years you worked there?

A. Um-huh.

Q. Okay. Now, did anybody in those two years ever complain about how you dressed or criticized how you dressed?

A. No. As a matter of fact, even Dave Herrington I remember him one time saying how really nice I always tried to dress and everything when I was up there. And after I had the baby, I remember him commenting on how I had gotten back down – my weight back down and how nice I was looking.

Q. Did anybody ever criticize you while you were at AIDC during that two-year period about talking too much, gabbing too much?

A. Oh, I'm sure I got a lot of trouble – I'm sure I got in trouble for talking. But I never got like paperwork, I mean, like – stuff like that. Just – they would – she would talk to me.

Q. Right. They gave you a break on these occasions. They never formally punished you, did they?

A. Well, they would – I don't think. I don't know if there was a formal procedure to formally punish you if you were talking, but I know that they would talk to me about it.

Q. Who's "they," other than Ms. Pennington?

A. Clydine Pennington. That would be who I was talking about.

Q. And during the period of time you worked for AIDC for that two years, one of you primary functions was to deliver – as a courier to deliver things; isn't that right?

A. That's correct.

Q. And where would you deliver things to?

A. All over the state Capitol grounds.

Q. And that included the governor's office?

A. Yes.

Q. And did anybody during those two year period ever criticize you or complain to you about how long you took to do the runs?

A. I believe I heard it before. But it was – they were just speculating because they didn't know what my job duties were and my job duties were to stay in the spot I was going until I had to carry paper back. And if people didn't know exactly what my job duties was, they might have thought I was sitting there not doing nothing.

Q. But you would go and you would make the runs, you would very often deliver things and chitchat with the people that you delivered them to?

A. Yes.

Q. And then didn't people criticize you for taking too long in you deliveries?

MR. CAMPBELL: Objection. That's overbroad and vague as to "people."

THE WITNESS: No. Not to me personally, no.

BY MR. BENNETT:

Q. Nobody ever –

A. No.

Q. Let me finish. Nobody ever complained to you that you were taking too long in making your deliveries?

MR. CAMPBELL: Same objection.

BY MR. BENNETT:

Q. Go ahead.

A. My supervisor might have said something to me. Clydine Pennington may have. But I don't recall. She may have though.

Q. Did Ms. Pennington ever warn you that if you took additional leave without pay that you might have disciplinary action imposed on you?

A. I don't recall. Un-uh.

Q. Do you remember an incident when on February 22nd, 1993, you told your supervisor that you needed to have leave without pay because you didn't have any running water in your house?

MR. CAMPBELL: Objection. Assumes facts not in evidence. No foundation.

THE WITNESS: I think that incident you're talking about was the gas was out. There was no hot water. It was when we moved from our home in Vilonia to a rental house in Jacksonville just for like a month, to move – to make the move because we sold our home and we had to get out. And I didn't have any – when I woke up to go to work to take a shower or whatever, there was no hot water so I couldn't go to work if I couldn't take a shower. It was real cold too. And that might have been the incident you're talking about. That's the only one I can think of.

BY MR. BENNETT:

Q. What did you do? Did you call Ms. Pennington?

A. I don't recall. I may have. Or I may have talked to Sherry Enderle, who was her personal secretary.

Q. And did you get in an argument about whether you should be given leave without pay for that reason?

A. No, I don't think. You're allowed to have, I think, leave without pay. But you know leave without pay. But if you do it enough times, I think you can get in trouble for it. But I don't think I had done it at all or very often.

Q. Now you were aware, weren't you, that AIDC had various complaint procedures which were available to employees if they had grievances.

A. Yes. As a matter of fact, I thought about doing that before, but I was just kind of scared to do that.

Q. You never filed any kind of grievance procedure during your two years at AIDC, did you?

A. No.

Q. Now since you have left AIDC, since you quit and went to California with your husband, have you applied for any other jobs?

A. Yes. I was with a temporary agency when I first moved out there.

Q. And what was the name of that agency?

A. Oh, I don't even know. It's been like four years ago. I could not even tell you.

Q. And did you get a job?

A. Yes. I worked at the Sheraton. I think it was the Sheraton. I worked in the executive offices. I was the reception – the main secretary out front, the receptionist.

Q. Was that the Sheraton Hotel?

A. Yeah. I was in the offices, though. I wasn't in the hotel part.

Q. And where exactly that was?

A. It was in Long Beach.

Q. Excuse me?

A. It was in Long Beach.

Q. How long did you work there?

A. Maybe a week or two. But it was because they were – I was just a temp until they found a permanent replacement. Because I wasn't qualified for the job and I wasn't trying to get the job. They just needed a temp until they hired somebody qualified for the job.

Q. All right. Did you ever apply for any other jobs after that?

A. I don't believe so. Because after I got my paycheck for that one week, it was not feasible to work and pay day care when day care took up that whole week's pay.

Q. How much pay did you get from them at the Sheraton?

A. I don't recall. But I remember day care for that one week was like $124 for a week and I don't think I made a whole lot over that. And it just wasn't feasible for me to drive and take my son to day care and me work. It would eat up the money.

Q. You made a lot less there than you did at AIDC, didn't you?

A. No. I was making $9 an hour at the Sheraton for just a week.

Q. So you were making more money –

A. For just a week, though.

Q. I see. All right. Did you apply for any other jobs?

A. I don't know if I did or not. I didn't apply. It's just that they would send me out, you know. Because they had my application at the temporary agency and they would send my application if they thought there was a job that I was interested in or something I –

Q. When is the last time you worked at a job other than –

A. The Sheraton.

Q. – other than being a mother of two children, which is a big job. I understand that.

A. Right. The Sheraton.

Q. Sheraton. So after you worked at the Sheraton, did you try to get any other employment?

A. I went to another interview and I know they liked me the first time I went in. And they didn't call me back and then about a week later, they did call me back, and then they interviewed me again and they didn't hire me for some reason. I don't know.

Q. And do you remember what year that was?

A. It was the same year. Probably in '94, '93, early '94, before – it was right after this – the lawsuit, I remember. Because they were talking about it up there and stuff.

Q. All right. Since you filed the law suit, have you applied for any other jobs?

A. No.

Q. Have you worked in any other jobs?

A. No.

Q. Do you have any intention of applying for any other jobs as you sit here today?

A. Oh, not until my kids go to school.

Q. And when will that be?

A. Well, neither one are in school yet. My oldest starts next year kindergarten and my youngest won't start for five more years, I want to stay home with my children.

(Pages 66-67 are missing.)

Q. Mr. Campbell doesn't know. I guess he never bounces.

MR. CAMPBELL: Objection to the sidebar.

BY MR. BENNETT:

Q. Did you ever bounce a check?

MR. CAMPBELL: Same objection.

MR. BENNETT: She knows what I mean, Mr. Campbell.

MR. CAMPBELL: I don't need that either, counsel.

MR. BENNETT: I mean, your silly objections, they're – you're just trying to harass me.

MR. CAMPBELL: I don't understand what you mean by bounce a check.

BY MR. BENNETT:

Q. Did you ever write a bad check at AIDC? A check where there were insufficient funds?

A. I don't recall.

Q. Do you recall an instance where you were asked to reimburse them for personal phone calls that you had made?

A. Yes. As well as everyone else had to do that.

Q. And did you give them a check for that, do you remember?

A. Yes.

Q. Do you remember if that check didn't go through for insufficient funds?

A. It could have at one time or something, but I don't recall.

Q. Do you remember asking for a picture of Governor Clinton from his office during one of your courier runs?

A. No.

Q. Do you deny that occurred?

A. It occurred the way you said it, yeah. I deny that. Yes.

Q. The way I said it?

A. Yeah. They way you said it.

Q. Well, do you have any recollection of asking anybody for a picture?

A. No.

Q. Did you get a picture?

A. Carole Phillips.

Q. Tell me about it.

A. Had a picture signed for me and just gave it to me. Of course, she did not know about the incident because I never talked to her about this. But she had, I guess on her own doings, had a picture sitting there waiting on me, signed from the governor, thinking that I would be very excited to get that picture. She did that on her own freewill. But I don't even know if I took the picture. I think I may have because she did not know about what had happened.

Q. And that was after the incident?

A. Yes.

Q. And do you remember signing a birthday card for Governor Clinton?

A. I believe I did.

Q. It's a big card?

A. Yes. I believe I did.

Q. And that was after the incident as well?

A. Yes.

Q. Wasn't it?

A. Um-huh. The reason was Carole Phillips was so excited. "You've got to sign this. You've got to sign this." She was a very jovial person and I didn't want her to lead on that there was something wrong. So I said, "Well, okay. I'll sign it." And I just signed my name or whatever to it. I don't remember or whatever.

Q. Did you write a note on it?

A. I don't think so.

Q. Now other than what you've already testified to this morning, can you identify for me any specific detriment or adverse action which you say you suffered at work because you refused to have sex with Governor Clinton?

MR. CAMPBELL: Objection. Overbroad. Vague as to which work.

BY MR. BENNETT:

Q. You can answer.

A. Just every day when I went there, it just seemed like there was a lot of smoke in the air, just cloudy, you know, the way my supervisor treated me. It was just a day-to-day thing. I know when I came back from maternity leave, I know they downgraded my job duties. Maybe not my pay but they did it knowingly, that I was coming back in six weeks. They could have done it before then or after I came back. They did that intentionally. Just the way, Cherry Duckett would walk right in front of me and I would look right at her and say, "Hi, how are you doing today," and she would hold her head down, "hi," and keep walking. That's not very professional. And that's not very nice, you know, if you've got employees working underneath you, it's good to be nice to them every day to make them feel comfortable about working in that area. And she made me feel so uncomfortable and I couldn't think of any other reason except for maybe that she knew about the incident. She was told to act like that.

Q. Now do you have any reason to believe that any of these people knew about this incident?

A. Well, Governor Clinton told me that Dave Herrington was a good friend of his and he appointed him to that job. So, yeah, I have every reason in the world to believe that they could have found – known about it.

Q. Well, we'll get to that. But when –

A. Well, I'm answering the question that you asked.

Q. No, you didn't answer the question.

MR. CAMPBELL: Yes, she did.

THE WITNESS: Yeah, I did.

BY MR. BENNETT:

Q. The question is, you have described to me, Mrs. Jones, what you perceived as the attitude of people towards you.

A. Right.

Q. You were uncomfortable; is that right?

A. Right.

Q. Did any of those people ever mention the incident with Governor Clinton?

A. No. But they wouldn't.

Q. Did any of these people say anything to suggest to you that they knew about the incident?

A. No. But like, for instance, one time on Secretary's Day, I'm a secretary and had been there nearly two years, and after the incident happened and everything, everybody in my section got flowers on Secretary's Day. I'm the only one out there did not get any flowers. And everybody noticed it and was coming around and saying, "That is so cruel of them. I cannot believe they did that to you." Now what other reason would they do that? Just to leave me out intentionally knowing that I'm a secretary. I'm sitting there. Things like that they would do. There had to be a reason for it. I know I wasn't doing anything wrong. So that's why I feel that there was things – somebody knew something. And it's very, you know, I don't know for a fact that they knew about it. But there had to be something for me to be treated that way. And I know that he was good friends with Bill Clinton because it came out his mouth hisself.

Q. Now what year was it you didn't get flowers on Secretary's Day?

A. Probably '93. Or no, no, no, '92. I'm sorry.

Q. Now you weren't a secretary, were you?

A. Yeah. I was considered a secretary in – none of the other people were considered secretaries except for Clydine's personal secretary. And even the accountant, even the insurance lady, everybody got flowers but me. I was the only one. My husband sent me flowers because it hurt me, so he sent me flowers and surprised me because nobody else bothered to send me flowers.

Q. Did you ask anybody why you didn't get flowers?

A. No. But people would come around and ask me, you know, "I can't believe," you know, they knew how Clydine was very kind of devious sometimes. They'd say, "I can't believe she did that. That was really mean." And I remember people around the office would come by and say, "I cannot believe you did not get flowers. That is so cruel and so cold."

Q. Who is responsible for giving flowers out?

A. Clydine Pennington.

Q. Do you believe as you sit here today under oath that the reason you did not get flowers on Secretary's Day is because you would not engage in sex with Governor Clinton in May of 1991?

A. I believe that has something to do with it, yes.

Q. And what is the basis for – what are the facts on which you base that belief?

A. Because Bill Clinton said that him and Dave Herrington were really good friends and Dave Herrington, he said that he had appointed him to that position. And Clydine and – Dave Herrington was Clydine's ultimate boss.

Q. Other than Secretary's Day, did any of the employees ever get flowers or little gifts on other occasions?

A. I think it was just Secretary's Day or maybe a birthday or something.

Q. Did you ever get any birthday presents or gifts of any kind while you worked at AIDC?

A. No. I don't recall at this moment.

Q. You did have that going-away party, though, didn't you?

A. I think it was a going-away party. I may be thinking about my maternity leave party.

Q. But you had a party?

A. Yes. It wasn't a party. It was a get-together.

Q. Did anybody – did Governor Clinton or anyone else at AIDC ever tell you that you had to submit to sexual advances of the governor in order to receive a job benefit?

A. No.

Q. Did anybody – did the governor or anyone else tell you that the governor would use his relationship with David Herrington to penalize you? Did anybody ever say that to you?

A. No. But nobody would say that.

Q. Did the governor or anyone else tell you that your refusal to submit to sexual advances would cause you to lose your job or have a negative effect on your job?

A. No.

Q. Did anybody tell you – the governor – did the governor tell you or anybody tell you that he would use his relationship with Herrington to have you demoted or reduced in salary in any way?

A. Yeah, he kind of made that statement. Clinton did.

Q. What exactly was the statement he made?

A. Well, when the incident happened in the hotel room, he reminded me that Dave Herrington was his good friend. If I had any trouble, have Dave Herrington call me immediately. I mean, how else would I take that? Why would he even mention it if he wasn't trying to make a point?

Q. All right. Well, my question to you, though, was whether Governor Clinton or anyone else ever said that he would use the relationship with David Herrington to have you fired or demoted or –

A. Not in those words. Not in those words. But you can read between the lines, you know.

Q. And that's what you're doing, you're reading between the lines?

A. Well, because I know what he meant.

Q. The fact of the matter is, Mrs. Jones, is following May 8th, 1991, you were not demoted or reduced in salary, were you?

MR. CAMPBELL: Objection. Asked and answered.

BY MR. BENNETT:

Q. What's your answer?

A. Yeah. After I come back from maternity leave, yes.

Q. You didn't lose salary, did you?

A. But I was demoted. I might have kept the salary, but I was demoted.

Q. You believe your employment records, which you have not looked at, show you were demoted; is that correct?

A. I don't know how they did it. I just know I was demoted. Everybody in the building probably knows I was demoted.

Q. All right. Now do you know of any women at AIDC who benefited in their jobs because they were having sex with Governor Clinton?

A. No, not to my knowledge.

Q. Do you know any woman who got a raise or a job or a benefit of any kind because they were having sex with Governor Clinton?

A. Are you –

MR. CAMPBELL: Objection. Overbroad and global as to "any women."

BY MR. BENNETT:

Q. Any of the women that you worked with.

A. Are you talking about just within AIDC? Or other –

Q. Within AIDC, yes.

A. Oh, not within AIDC, no, I don't know of any.

Q. All right. Now let's go outside of AIDC. Do you know anybody who got a job because they were having sex with President Clinton – then-Governor Clinton?

A. Yes. From what I have been told.

(Lines 12 to 22 on page 77 are missing)

Q. Where did you get that information?

MR. CAMPBELL: Objection to the extent that – if you have to answer that question in a fashion that would reveal confidential communications with your counsel, I instruct you not to answer that.

BY MR. BENNETT:

Q. Other than learning that from your lawyers, you never heard that before, did you?

A. Correct.

Q. What's your answer?

A. Correct.

Q. Anybody else? Any other women?

MR. CAMPBELL: Objection. Overbroad and global.

MR. BENNETT: Do you want to take a break?

MR. CAMPBELL: That would be great.

(Off the record.)

Events at the Excelsior Hotel

BY MR. BENNETT:

Q. Mrs. Jones, on May 8th, 1991, you went to a room in the Excelsior Hotel where you met Governor Clinton; is that correct?

A. That's correct.

Q. And how long were you in the room total?

A. Between 10 and probably 15 minutes.

Q. And did you voluntarily go up to the room?

A. With the guidance of a state trooper, yes.

Q. And why did you go up to the room?

A. Because I wanted to meet the governor and he wanted – he asked to meet me.

Q. And why did you want to meet the governor?

A. Because it was exciting. I had never met the governor before. It's exciting. So I was going to go up there.

Q. And I believe you've stated publicly that you thought maybe it would help you get a better job; is that right?

A. That's correct.

Q. How long were you in the room before you first saw the governor's exposed penis?

A. Probably about five – between five and six or seven minutes.

Q. And how far were you away from the governor?

A. He sat down right beside me.

Q. So you were just a couple of feet away?

A. Not even that far, I don't think. He sat right down nearly on top of me.

[Several pages deleted]

Q. What did you do as soon as you saw that?

A. I jumped up and I said, "I'm not that kind of girl," after I looked at it and he was trying to grab me. But, I mean, I went on ahead and jumped up and I turned around and that's when I – that's the thing I drew there from this perspective of standing up, looking down on the couch at him.

. . .

Q. You stayed in the room for another five or 10 minutes?

A. Oh, no. I started to leave. And he pulled up and I was fixing to go out and I said, "I've got to be going. I've got to go back to the registration desk. I'm going to get in trouble." He pulled up, you know, stood up. And he was just red as he could be. You could tell I had embarrassed him so bad, because he probably expected me to do something. And he pulled up his pants, trying to situate himself. And I don't think he tucked in his pants. He just pulled them up and zipped his pants up, still with an erect penis.

And he said, "Well, you know, if you have any trouble, I want you to have Dave Herrington call me immediately." And that was the second time he had mentioned Dave Herrington. And then I proceeded to go on to the door and he rushed up behind me. I started to open up the door, he put his hand on the door to where I could not open it up any further, and he stopped me and he says, "You're a smart girl, let's keep this between ourselves." And when I went out the door, the state trooper was there, which is Trooper Ferguson. And he was standing out there.

Q. Are you saying that the governor did not let you go out the door?

A. Not for a split second, yeah. He confined me for a moment to let me know that I'm a smart girl and let's just keep this between ourselves.

Q. And the governor had his hand on –

A. On the door. When I opened the door, he stopped it, the back of the door, long enough to let me know what he wanted to tell me.

Q. Now have you ever said that before?

A. Yes, I have.

MR. CAMPBELL: Whoa, whoa, objection.

THE WITNESS: I'm sorry.

MR. BENNETT: Could I finish the question?

MR. CAMPBELL: Surely.

BY MR. BENNETT:

Q. In any of the many press conferences you gave, did you say that before?

A. I don't recall if I have or not.

Q. Did he let you go out the door?

A. Yes. After he told me what he told me.

Q. And what did you understand him to have meant by that?

A. Well, he was threatening me. He said, "You're a smart girl. Let's keep this between ourselves." Apparently he didn't want this to get out.

Q. Did you stay – how long did you stay in the room after you saw the exposed penis?

A. Minute and a half or something like that maybe. Because it took about two or three minutes to even just get back down to where my registration desk was because it's a big hotel.

Q. No. I mean, outside the door of the room.

. . .

Q. And Ferguson was right outside the door?

A. Yes, he was.

Q. Was he blocking the door?

A. No.

Q. Was the door locked when you went out?

A. No. I don't believe it was.

Q. Was the door locked when you went in?

A. No. The door was ajar when I went in. It was cracked open.

Q. And how did you get out the door? Did you just turn the handle and walk out the door?

A. Yeah. After he tried to hold me in there for a few minutes.

Q. Now you say he tried to hold you in there for –

A. Well, he held the door –

Q. Let me finish.

A. – for a few seconds.

Q. Are you saying that he tried to hold you in that room for a few minutes? Is that what you're saying?

A. I'll redo that. A few seconds. Long enough to tell me what he wanted to say to me.

Q. Did you express to him in the room that you were concerned about being away from your desk?

A. Yes.

Q. What did you say?

MR. CAMPBELL: Objection. Asked and answered.

BY MR. BENNETT:

Q. Go ahead.

A. After, you know, when I said I had to be leaving, I said, "I'm going to get in trouble. I need to go back down to my registration desk." I had to find something to try to get away from him.

Q. Is that when he said, "If you have any trouble" –

A. Have Dave Herrington, he would take care of it for me.

Q. And you interpreted that as a threat?

A. I interpreted that as that he's the governor and he can do what he wants to and he's got the power to do and if I got in trouble to have Dave Herrington, his good friend, call him and he'll just take care of it, if I got in trouble by my immediate supervisors where I was working at the hotel that day.

Q. So in other words, you interpreted it as a threat rather than as his saying, "If you get in trouble with your bosses, I'll help you out?"

A. Right.

Q. And what did you say, if anything, to Mr. Ferguson, Trooper Ferguson, when you left?

A. I didn't say anything to Mr. Ferguson. He was sitting down, as I recall, on a bench or a chair that had been put out there, waiting for, I guess, Bill to do his thing and when I walked past him, he looked up and give me a smirk.

Q. Was he right outside the door?

A. Oh, just a few feet away maybe. He was there guarding. Absolutely.

Q. Well, was he sitting down?

A. I think he was sitting down, yes. He was sitting down.

Q. And how far away from the door was he?

A. I don't know. A few feet maybe.

Q. And you had no conversation with him at all?

A. No. He looked at – he looked at me, looked up at me

(Pages 99 to 100 are missing)

A. Okay. He come over to – the first time he come over to say anything to me and Pam Blackard was when Clinton was in the ballroom speaking and he come over just to chat or something and he said that he was the governor's bodyguard and I think he said what his name was. And we said, "Oh, do you have a gun?" Because he was in plain clothes and we wanted to know. He said yeah. So I think Pam said, "Well, let's see your gun" or whatever. And he pulled back his coat and he showed us his gun that he was carrying. And then I think he kind of walked away and it just some small chat or whatever. Because he was standing out there by himself. And we were out there.

And then the second time was when he come to hand me a note and tell me that the governor wanted to meet with me and on the note was a four-digit number. I remember looking at it. He said, "The governor" – I don't know if he used the word Bill or the governor – "wants to meet with you in this room number."

I said, "What for? What does he want to meet with me for?" And I was excited, though. You know, but I thought why would he want to meet with me? And I asked him that question as well as I voiced it to Pam.

And he said, "It's okay. We do this all the time."

And so then when – he left – I said, "Well, I'll think about it for a while."

Discussed it with Pam. She said, "Good, maybe we can find a job. You know, maybe we can get a better job." And I'm not stupid, yeah, I was going to go up there and see if I could maybe get another job or find a way to put applications to better myself and to get another job, a higher-paying job. And I thought maybe I could help my friend out and stuff. And I was excited to meet the governor. So Pam said, "Now you go up there, I'm going to watch the desk and everything, but don't stay too long." That's why I know I was not up there longer than maybe, you know, 10 minutes at the most, up in the room itself, because Pam didn't want me to be gone very long either because she didn't want to get in trouble and have to explain to somebody where I was.

That was the conversation that me and Ferguson had had. And then when he come back to see if I was going to go up there and then me and Pam had decided, yeah, I'll go up there and then me and Pam had decided, yeah, I'll go up there. So then he escorted me up and around the corner and up the elevator.

Q. Now did you tell anybody downstairs why you were leaving the desk? Did you give any excuses to anyone –

A. I didn't.

Q. – as to why you were leaving the desk?

A. Un-uh. I didn't talk to anybody about where I was going or what, except for Pam.

Q. Do you know whether Pam did?

(Page 103 is missing)

A. Yeah, He seemed like he was unloosening his tie as soon as I – you know, he come to the door and opened it because it was already ajar and I knocked on the door facing and he opened up the door and it seemed like he was loosening his tie with one hand and he acted like he had known me for years. You know. Right off the bat. And I had never met the guy in my life. And he shook my hand. And he introduced hisself or whatever.

Q. How did he introduce himself?

A. "I'm Bill Clinton." I think it was that. I don't think he said, "I'm the Governor." "I'm Bill Clinton."

Q. And then what happened?

A. "Nice to meet you" or whatever. And then we proceeded to – I proceeded to go on in. And went –

Q. Did you say something to him when he said, "Hi. I'm Bill Clinton"?

A. I said, "I'm Paula Corbin" or whatever.

Q. Okay.

A. And I think he had said something about – he asked me where I was worked and I told him I was over at AIDC and he said that he knew – Dave Herrington was a good friend of his and he had appointed him to that job. And then when we went in, oh, a couple of minutes, we went over by the window and I remember looking out the window because there's a pretty view up there, because it was really high up. And that's when he ... made his first pass at me at the window.

Q. Okay. Tell me exactly what he did.

A. He sat down on the windowsill, leaned up against it with his bottom. And I was standing in front of him just talking because I was the one looking out the window. And he proceeded to – he just reached right over while we were talking and we were just talking in general and I don't know what exactly everything we were talking about but nothing sexual. And –

Q. Do you remember anything you were talking about?

A. I think we were talking about the job or whatever and about working with the state or something. I really don't know exactly, but it wasn't nothing bad that we were talking about. Because what was so shocking to me I'm sitting here talking to this man but nothing related to what's on his mind and he's over here while he's answering my questions pulling me over like he has done this a million times and grabs me and pulls me over to him to the windowsill and tries to kiss me and just didn't ask me or nothing. And I was just really shocked. And I pulled away. That was the first time I pulled away. I said, "No." I said, "What are you doing?"

Q. Now he was still –

A. I was so scared and nervous.

Q. Was his back to the window?

A. Yes.

Q. So why didn't you just go right out the door?

A. You know what? This is the governor we're talking about. I had just met the man. A state trooper sitting outside the door with a gun. I know that. I'm terrified. And so what I'm thinking next is what was happening here and what am I going to do next to get out of the room? Is he going to stop here? I didn't know but that would be it. But the man kept on and on until he dropped his pants. That's why I didn't run out the door. I was scared.

Q. After he made a pass at you, you didn't go right out the door, did you?

A. No. Because the state trooper was out there and I knew he was out there. And I did not know but what they were taping and had him out there to – all kinds of stuff was going through my mind. Because I'm thinking, this is not happening to me. This cannot be happening to me. And I thought if I run out that door, he's going to catch me, because Bill will know I'm fixing to run tell somebody. I'm not that stupid. I was not going to run out the door. I was scared to death.

Q. So instead of running out the door, what did you do?

A. I just moved away from him and got completely away from him. He was still sitting on the windowsill.

Q. All right. Then what happened?

A. And I went way over like to the middle of the living area. And I was talking to him about Hillary. I mean, I was just kind of trying to ignore what he had just done. And I was talking to him about Hillary and she was working with children's things or something, children's schools at the time, and I remember I was complimenting her on how she was really good with children. And the next, you know –

Q. Then what happened?

A. I was – he come over by the wingback chair close to where I was at. Then it's like he wasn't even paying attention to what I was saying to him. Then he goes, "Oh, I love the way your hair flows down your back. And I was watching you," and stuff like that. Downstairs. And then he did it again. Then he started – he pulled me over to him while he was leaning up against the wingback chair and he took his hands and was running them up my culottes. And they were long. They were down to my knees. They were long, dressy culottes. And he had his hand up, going up to my middle pelvic area, and he was kissing me on the neck, you know, and trying to kiss me on the lips and I wouldn't let him. And then I backed back. I said, "Stop it. You know. I'm not this kind of girl." I mean. And it still – and then I ran right over to where the couch was. I thought what am I going to do? I was trying to collect my thoughts. I did not know what to do. After the second time – after the first time, I had rebuffed him. And then when I got over there and I kind of sat right there by the end of the couch on the – seemed like on the armchair part. And the next thing you know it, I turn around because he was kind of back over here, and he come over there, pulled his pants down, sat down and asked me to perform oral sex.

Q. What did he say exactly?

A. He asked me would I kiss it. He goes – you know, I can see the look on his face right now. He asked me, "Would you kiss it for me?" I mean it was disgusting.

Q. Were those the actual words he used?

A. Yes.

Q. He didn't use other words?

A. I think that was it.

Q. Okay. What did you say?

A. I said, "No. I'm not that kind of girl." And that's when I said, "I'm going to get in trouble. I've got to be going. I've got to get back to my registration desk." And then he said – then he was – you know, you could tell he was embarrassed and everything. And he was pulling up his pants. And he said, "Well, if you have any trouble, you have Dave Herrington call me immediately." And you could tell he was so embarrassed because of what he had just done, because I had rejected him.

Q. All right. Now then you went downstairs and you told Pam part of this story; is that right?

(Pages 109 to 119 are missing)

A. He wanted me to do something against my will.

Q. That's not my question. Did he require you to do something against your will?

A. Well, he tried to kiss me against my will. Is that what you're saying? I'm not quite sure.

Q. You said when he –

A. Absolutely, but he still wanted me to do it. Three times he tried to make me do it against my will. I would say so after the first time of rejection, yes, he did.

. . .

Q. All right. What other damages or injuries did you sustain?

A. He threatened me about – when I opened the door, he held his hand up there and said, "You're a smart girl. Let's keep this between ourselves." That's a threat. He don't want me to tell anybody.

Q. Okay. What else?

A. He told me about his boss – my boss, ultimate boss was his dear friend and to me – it seemed to me that if anything – if I was going to get in trouble for anything whatsoever for being up there, his boss could have took care of it one way or the other, either got me fired or helped – helped me not get in trouble for being away from the registration desk. That was a threat.

Q. Okay.

A. That was intimidation.

Q. What other injuries?

A. Just psychological of him dropping his pants and doing what he did. I mean there was a few minutes of conversation and the man dropping his pants. That's mentally abusive and I felt shame. I felt like I was the bad person after I left that room. I thought I was the bad person here and I was the one that was at fault for going up there and I would have never thought that – I would have never expected that. I didn't expect to go up there with sex on my mind, but intentionally, he had that on his mind apparently or he would have never wanted to see me.

Q. What psychological damage did you sustain? Could you be more specific?

A. Absolutely. I mean I was horrified. I was – I was scared to death. I would have to think about that. Every time I look at this man on TV – I don't even look. I just turn it off because it brings back that terrible day of when I had to look at his private parts, a strange man without me asking for it.

Q. All right. Now, have you ever consulted a psychiatrist for this?

A. No.

Q. Have you ever consulted a psychologist about this?

A. No.

Q. Have you ever had any medical bills as a result of this?

A. No.

Q. Has this affected your marriage?

MR. CAMPBELL: Well, I will object to the extent that that would cause you to violate the husband/wife privilege. I will instruct you not to answer as to any private communications, verbal or non-verbal, between you and your husband.

BY MR. BENNETT:

Q. Are you making any claims in this case that either Danny Ferguson or Governor Clinton are responsible for any damages as it may relate to your marriage?

A. No

Q. Do you take medication?

A. No.

Q. Have you ever taken any medication because of this?

A. No.

Q. Have you ever had any psychiatric treatment –

A. No.

Q. – for any reason?

A. I'm sorry. No.

Q. Have you ever had any prior incidences in your life which have caused you emotional distress such as molestation or incest or date rape?

A. No.

Q. After the alleged incident, you never took any time off work because of it, did you?

A. No.

Q. Never had any physical ailments because of it, did you?

A. Mentally, yes, thinking about it and when I would see the man on TV and then when he got reelected for President and I just couldn't understand how America could vote a man in for president, but they did not know what he did to me and I thought if they only knew what I know he's done and he's the President of the United States.

Yeah, it caused emotional pain and stress, but I didn't want to go tell anybody about it because I just wanted to let it go away. I wanted to keep it a secret and not let anybody know about it.

Q. Do you still have this emotional distress?

A. Absolutely. Every time I see that man on TV.

Q. Every time you talk about this incident or think about this incident, it causes you stress –

A. Emotional.

Q. – is that correct?

(Pages 124 to 225 are missing)

...he's an actual police officer and whether he has a gun and that Pam wanted to see the gun; is that right?

A. That's correct.

Q. Was it Pam who asked to see his gun or was that you?

A. I think it was her that asked, but I'm not for sure.

Q. And he did open his coat in response to that banter and show that he had a gun; is that correct?

A. Yeah. Well, I don't know if we asked – I don't know if she asked him to show it or he said yeah and he just pulled back his coat and showed it to us.

Q. Did you in any way take this to be intimidating or threatening or coercive in any fashion?

A. Not at that point, no.

Q. So this is just light banter between – all the convention delegates are in the hall listening to the Governor speak and you and Pam are outside and I guess the only other person outside is Danny Ferguson. Is that your recollection?

A. Yes.

Q. Okay. So he's being friendly with you and you and Pam are being friendly with him?

A. Right.

Q. Okay. Now, how many minutes do you recall this conversation taking place?

A. Five minutes or something because he wouldn't stay there the whole time.

Q. In the – in the context of this conversation with a man that you know to be Governor Clinton's bodyguard, did you make any statements about you would like to meet the Governor or had you hoped to see that Governor? Did you say something to that effect?

A. No.

Q. Did Mr. Ferguson say anything to you in this five-minute conversation about whether or not you would like to meet the Governor?

A. Not at that conversation, he didn't.

Q. Okay. All right. So in that five-minute conversation, nothing has – nothing is said about you meeting him or him – him wanting to meet you, talking about Governor Clinton; is that correct?

A. Oh, I don't think so, not in that portion of it.

Q. All right. Then how much time went by from this five-minute conversation until you saw State Trooper Ferguson again?

A. I don't know. It could have been an hour. It was awhile.

Q. Could it have been as little as 30 minutes?

A. Yes. I really don't know. It was awhile though. I mean he didn't just hang around the whole time.

Q. Okay. It could have been as little as 30 minutes.

(Pages 228 to 235 are missing)

Q. Now, you say that he reached and pulled you to him. What part of your body did he place his hands on?

A. He pulled my hands up to – to pull me up to him.

Q. All right. Now, did he in any way hurt your hands when he did that?

MR. CAMPBELL: Objection, asked and answered.

THE WITNESS: No.

BY MR. BRISTOW:

Q. Now, did he try – when he pulled your hands toward him, did he try to kiss you at that time?

A. He was just trying to hug up to me at that point and I said, "What are you doing?"

Q. Okay. And what did he say?

MR. CAMPBELL: Objection, asked and answered.

THE WITNESS: I don't think he even answered me.

BY MR. BRISTOW:

Q. Then what did you do?

MR. CAMPBELL: Objection, asked and answered.

THE WITNESS: I proceeded to walk over to where – oh, between the chairs and the couch, you know, closer to the end of the door, over in the middle of the living room and he walked over there towards me and he leaned up against the back of a wingback chair and then he started proceeding to tell me how he liked the way my curves and my hair was down my back and then that's when he pulled me up again. He was trying to run his hand up to the middle of my, you know, my pelvic area and he was trying – he was kissing me on the neck and started to kiss me on the lips and I just – I said, now, "what are you doing? Stop it. I'm not that kind of girl" or whatever. I said –

BY MR. BRISTOW:

Q. How many times did you tell him that you were not that kind of girl?

A. I think I said that twice.

Q. And what provoked your saying that twice?

A. Well, I wasn't that kind of girl to do that with a strange man that I just met within five minutes.

Q. Well, what did you – what did he do that caused you to say you were not that kind of girl? You say that – you say that he put his hands up your culottes?

A. Uh-huh.

Q. What did he touch when he –

A. He was trying to touch my private area.

Q. Well, did he do that?

A. Well, he was on his way to trying. If I hadn't have stopped him, he would have.

Q. And that's when you said that you were not that kind of girl?

A. Absolutely.

Q. Now, what else did he do when you said the second time that you were not that kind of girl?

MR. CAMPBELL: Objection, asked and answered.

BY MR. BRISTOW:

Q. Go ahead.

A. When he exposed himself to me and I got up off the couch, off the end of the couch and I said, "I'm not that kind of girl. I've got to be going."

Q. Okay. And you said that at that point in time that you were only able to be away a short time, is that right; you might get in trouble at work –

A. Right.

Q. – if you didn't go?

A. Right.

Q. And at that point in response to that, what did he say?

MR. CAMPBELL: Objection, asked and answered.

THE WITNESS: Well, he said – he said, "Dave Herrington is a good friend of mine" or whatever he said. "If you have any trouble, have your boss, Dave Herrington, call me immediately."

BY MR. BRISTOW:

Q. Okay. Now, at any point while you were in the room, did he say – did Mr. Clinton say anything about Danny Ferguson?

A. I don't recall, no.

Q. Did you say anything about Danny Ferguson while you were in the room?

A. No.

Q. Now, you say that when you left the room that you saw Mr. Ferguson and did not have any conversation with him?

A. That's correct.

Q. And then you came back downstairs and you finished – finished up your shift?

A. That's right.

Q. If the personnel records at AIDC indicate that you worked on Thursday and Friday and all the following week, you would not dispute that, would you?

A. No.

MR. CAMPBELL: Objection. No foundation, misstates the evidence in the record, no evidence in the record.

By MR. BRISTOW:

Q. And go ahead.

A. That's correct.

Q. You would not dispute that if that's what the record showed?

A. No.

MR. CAMPBELL: Same objections.

THE WITNESS: No.

BY MR. BRISTOW:

Q. Now, in addition, when you went back to work, you continued to run the rounds as a courier which took you to the Governor's office; is that correct?

A. That's correct.

Q. Okay, And in fact, continued on a daily basis to go to the Governor's office; is that correct?

A. Yes.

Q. Now, when is the next time after the incident at the Excelsior that you spoke with Governor Clinton?

A. After the incident at the hotel?

Q. Yes.

A. Let me get which one come first. I think it was – it was when I was walking through the state capitol. I was on my way to the treasurer's office and to deliver or pick up some checks, payroll checks because that was my job too and they were – Trooper Patterson and Clinton were walking up to the front of the state capitol and I was walking – the rotunda is round, so I was walking this direction. They were coming up on the opposite side and he would have came, you know, back this way to go to the Governor's office. Instead, he hollered my name out and diverted and come back around this way and hugged me, put me in a full brace hug. And I don't think I hugged him back and then –

Q. Now, at that point in time, did you know who Trooper Patterson was?

A. No.

Q. So what you remember about this incident is that the Governor was accompanied by a trooper, correct?

A. I knew his name was Roger.

Q. Well, the trooper's name was Roger; is that right?

A. Yes.

Q. All right.

A. I mean – I'm sorry – Larry. I get them confused.

Q. Well –

A. I'm sorry.

Q. Okay.

A. Larry.

Q. So all you really know is that the Governor had a trooper with him and you did not know the name of the trooper?

A. Well –

MR. CAMPBELL: Objection, misstates prior testimony.

BY MR. BRISTOW:

Q. And you can go ahead. Isn't that – at the time it occurred, going back to the time the incident in the rotunda occurred, at that point in time, you did not know who the trooper was, did you?

Mr. CAMPBELL: Objection, Misstates prior testimony.

BY MR. BRISTOW:

Q. Go ahead.

A. I knew who he was because Clinton looked at him and said, "Hey, Larry, don't we make a good looking couple?" So I knew what his first name was. I didn't know what his last name was though.

Q. And you had never met that trooper before that occurrence?

A. That's right.

Q. All right. Now, what else did Governor Clinton say other than "hey, Larry, don't we make a good couple?"

A. He said, "Hey, Larry, don't we make a good looking couple?" And he was hugging me side to side then and then he said, "We look like beauty and the beast." And I didn't know what to say. I looked up at him and I said, "You just don't – you don't look like the beast." That was the only comment I made – I made and I think Larry, he smiled or something.

Q. Okay. And you said you don't know – you remember him hugging you, but you don't know whether that you may have hugged him back?

A. I don't think I did.

Q. But you don't know one way or the other?

A. No, I don't believe I did.

Q. Okay, And everybody is smiling about this. Larry is smiling, the Governor is smiling and you were smiling; is that correct?

A. I don't know if everybody was smiling or not.

Q. Well, when you made the statement "you don't look like the beast," you were smiling about that. It was all in a light vein; isn't that right?

A. Yeah, probably, but I wasn't, you know, smiling real big or laughing or anything.

Q. Okay. And then the Governor and Patterson walked off and you went on about your rounds; is that correct?

A. Oh, well, Clinton made a point to tell me how he thought I looked that day.

Q. What did he say?

A. He said I looked really nice and he liked what I had on.

Q. Okay. Anything else was said that day?

A. And I think that was it.

Q. Okay. All right. And what did you say when he told you that he thought you looked very nice and he liked what you had on? Did you say thank you?

A. I don't know if I did or not. I could have said thank you, but I don't recall saying anything to him back.

Q. But you may have thanked him and been polite?

A. I may have.

Q. Okay. Now, what is the next incident when you personally saw the Governor?

A. Now, I don't know what time – point in time this was, but one instance, I was in the Governor's office like I did every day. I would go there twice a day and sometimes I would have to wait. That was my job to wait, have documents signed by whoever was in the Governor's office and I was sitting in there one day right in a chair like this right at the door and there was windows right here, right at the door and I was probably chatting with Carole Phillips. We talked a lot and there was some bright lights coming and we looked behind and that was – he was coming up there, Clinton was, and when he – as soon as he walked in the door – and this is probably on film somewhere. As soon as he walked in that door, he patted me on the thing. He said, "How are you doing, Paula?" He remembered my name again and that's on film somewhere.

Q. Okay. Now, what did you say?

A. I don't think I said anything or I may have said hi, but that's it.

Q. All right.

A. He acknowledged me and everything.

Q. And anything else that was said?

A. No.

Q. Okay. And did he do anything unfriendly or intimidating when he acknowledged you? I mean you say he was being filmed.

A. Not in the front of the cameras, I doubt if he would do that.

Q. So when he patted you on the shoulder and said "How are you doing, Paula –"

A. Uh-huh.

Q. – he did that in a friendly fashion, correct?

A. Yeah.

Q. And you responded in a friendly fashion. Correct?

A. I guess.

Mr. Campbell: Objection, misstates prior testimony.

BY MR. BRISTOW:

Q. Go ahead.

A. I don't know how I responded. I don't know if I said anything. I may have just looked at him.

Q. Okay. You don't recall how you may have responded?

A. Huh-uh, no, I don't.

Q. By the way, what was the outfit you were wearing when he said you looked nice when you were in the presence of Roger Patterson – Larry Patterson, do you remember?

A. Yeah. I think it was an Easter outfit I had. It was a white, like a long cullote thing. Those were in style then and it was made out of like a silk type material. It was a dressy outfit. It was long, about down to my knees.

Q. Okay.

A. Had a big wide belt around it.

Q. When you wore that outfit, was it unusual for you to receive compliments that you looked good in that outfit?

A. I don't remember anybody really said anything.

Q. You don't remember one way or the other?

A. Huh-uh.

Q. Okay. All right. Tell me about any other incidences in which you met Governor Clinton.

A. That was it.

Q. All right. Now, let's go back from the day at the Excelsior Hotel. Tell me about the next time that you saw Danny Ferguson.

A. After I left the hotel room, he was sitting out there and he looked up with a smirk on his face. I went down to the elevator. I did not see him any more that day at all whatsoever. I left and the next time I saw him was – it seemed like it was quite awhile, a few months or something.

I was over at the Governor's office and he was not sitting in the Governor's office and usually he doesn't sit out there. I think they sit in the back. And I was sitting there and I left – when I went to leave, I heard somebody holler my name and he rushed out and it was Ferguson and he said, "The Governor wanted me to ask you if he could get your phone number because Hillary is out of town a lot and he would maybe like to meet with you." And I told him no, that I was living with my boyfriend and I did not mention his name and he responded by saying, "well, how is Steve doing" and I did not tell him who he was.

Q. Okay. Anything else that was said in that conversation?

A. No. I think that was it.

Q. Okay. When is the next time that you saw Danny Ferguson?

(Pages 248 to 260 are missing)

... and Clinton makes him do it and –

Q. But you said the case –

MR. CAMPBELL: Counsel, it's after 5:00 now

MR. BRISTOW: Just about two or three minutes will be a good breaking point.

BY MR. BRISTOW:

Q. You said that the reason that you sued Mr. Ferguson was because he had lied about you, but – and that that had hurt your reputation; is that right?

A. Right.

Q. Were you not aware that there has been a motion filed in this case to take your reputation out of it, to take away anything about your defamation or reputation? Are you aware of that?

MR. CAMPBELL: Objection, misstates the motion at issue, misstates the evidence in the record and no foundation.

BY MR. BRISTOW:

Q. Isn't it true that a motion has been filed to take away the reputation issue and to drop the defamation claim against Mr. Ferguson?

MR. CAMPBELL: Same objections.

THE WITNESS: Yes.

BY MR. BRISTOW: Was that filed with your permission and your consent?

A. It was filed, but I didn't really care if it was dropped or not personally.

Q. Well, if you don't care about whether you are suing Mr. Ferguson for defamation or not, why are you suing Mr. Ferguson? Why do I have to be here? Why does Mr. Ferguson have to be in this lawsuit? What is it you're wanting from Mr. Ferguson?

MR. CAMPBELL: Objection, multifarious. That's about four questions. Also, objection, asked and answered. She already told you, counsel, she was suing him for his conspiracy.

BY MR. BRISTOW:

Q. If you are willing to drop the defamation count as your lawyers have represented to the federal judge, why are you suing my client, Danny Ferguson, at this point in time?

MR. CAMPBELL: Same objections, asked and answered.

BY MR. BRISTOW:

Q. Go ahead.

A. Because he did escort me up there knowing full well why. He said he did it all the time. So he knew exactly what was going to take place. Him and Bill Clinton apparently conspired together to get me up there and tell

(Pages 263 to 299 are missing)

A. I think so. I don't recall.

Q. Now I want to ask you about some facts and I want to – I want you to tell me every fact that you have that you think supports these allegations. And generally it is my understanding that you believe that Governor Clinton and Danny Ferguson or Danny Ferguson that you were, I think – I think that you believe that you were stalked, that you were under surveillance, that you were investigated, that you were harassed. Am I correct that you are making those allegations against Mr. Clinton and Mr. Ferguson?

A. That's the way I felt personally.

Q. Okay. Now what I want you to do is tell me the facts that you are aware of to indicate that you were under some sort of surveillance.

A. Okay. Well, first of all, Ferguson said – he asked me how Steve was doing. I never told him Steve's name. That was the incident in the state Capitol. And apparently he knew who he was. And I didn't tell him. And we weren't married at that point. So I don't know how he found out who my boyfriend was. So apparently somebody had looked into something to –

Q. All right. Now that is an assumption you are making; is that correct?

A. Yes. But you're asking me what assumptions do I have that would make me think that. Now that is an assumption that I have that would make me believe that somebody knew something because nobody knew who Steve's name was and surely he wouldn't –

Q. Okay. Well now, a fact is something you have seen or something you have heard. And so you have told me a fact, and it's your testimony that Mr. Ferguson asked you how was Steve doing. And I accept that as a fact that you have. Now what other facts do you have that you either saw or heard or someone reported to you to indicate that you were under some form of surveillance?

A. I don't have any substantial facts, because I really don't. But that's just the way I felt.

. . .

15.10 Hunter Readings (part 2) 15.10 Hunter Readings (part 2)

Read the following pages from The Power of Procedure by Nan D. Hunter. Though there were readings from the book assigned earlier in the day, read these pages only after the assigned cases and readings on summary judgment.

Read pages 147-167. This opinion contains the summary judgment grant in Jones v. Clinton. This is the opinion that will be the subject of an appeal in our simulated oral argument.

15 Day 15 15 Day 15

15.1 Hunter Readings 15.1 Hunter Readings

15.2 Rules 15.2 Rules

15.3 Background on Rule 56, Summary Judgment, and Burdens 15.3 Background on Rule 56, Summary Judgment, and Burdens

15.4 Celotex Corp. v. Catrett 15.4 Celotex Corp. v. Catrett

CELOTEX CORP. v. CATRETT, ADMINISTRATRIX OF THE ESTATE OF CATRETT

[330] I

II

15.5 Catrett v. Johns-Manville Sales Corp. 15.5 Catrett v. Johns-Manville Sales Corp.

Celotex on remand

Myrtle Nell CATRETT, Administratrix of the Estate of Louis H. Catrett, Deceased, Appellant, v. JOHNS-MANVILLE SALES CORPORATION, et al.

15.6 Handout on Summary Judgment 15.6 Handout on Summary Judgment

15.7 Scott v. Harris 15.7 Scott v. Harris

SCOTT v. HARRIS

15.8 Notes following Scott 15.8 Notes following Scott

15.9 Excerpts from the Deposition of Paula Jones 15.9 Excerpts from the Deposition of Paula Jones

15.10 Hunter Readings (part 2) 15.10 Hunter Readings (part 2)

CELOTEX CORP.
v.
CATRETT, ADMINISTRATRIX OF THE ESTATE OF CATRETT