Recently, in George Fleming and Fleming & Associates LLP v. Rebecca Wilson et al., the Texas Supreme Court issued an opinion addressing rules 901 and 902 of the Texas Rules of Evidence. The plaintiffs in this case consisted of about 4,000 individuals suing their former attorney for breach of contract and breach of fiduciary duty.
Fleming represented over eight thousand users in a mass-tort action. Throughout the course of that case, he spent over $20 million to screen potential claimants, and after settlement, he deducted that amount from the $340 million settlement before distributing the funds to his eight thousand clients.
About half of those clients then sued Fleming. Instead of trying all 4,000 claims together, the parties agreed to sever and brought a separate claim of six randomly selected plaintiffs. The jury found for Fleming and the trial court entered a final, take-nothing judgment. Fleming then filed a motion for summary judgment against the remaining plaintiffs (the Wilson plaintiffs), asserting that the plaintiffs waived and released their claims offering as support uncertified copies of the prior jury verdict and judgment. The trial court granted summary judgment for Fleming, but the appellate court reversed that ruling holding that Fleming failed to properly authenticate the uncertified copies of the prior jury verdict and judgment.
Fleming appealed and the Supreme Court of Texas concluded that the trial court did not abuse its discretion by finding the uncertified copies authentic. The Court turned to rules 901 and 902 of the Texas Rules of Evidence. Rule 901 provides a non-exclusive list of evidence examples sufficient to support a finding that the item is what it is claimed to be. Rule 902 provides an exclusive list of self-authenticating items that courts must accept as authentic without requiring any extrinsic evidence. However, rule 901 does not require extrinsic evidence either. The Court concluded that the trial court could have found that the documents were authentic under rule 901(b)(7) because of the watermark and file stamp on the document from the district clerk’s office. No extrinsic evidence was required even though the document was not self-authenticating under Rule 902, as it would have been if it was certified. The Supreme Court reversed the court of appeals, holding that the trial court did not abuse its discretion by finding the evidence authentic.