ALABAMA AIRCRAFT INDUSTRIES, INC., Alabama Aircraft Industries, Inc. – Birmingham, and Pemco Aircraft Engineering Services, Inc., Plaintiffs, v. The BOEING COMPANY, Boeing Aerospace Operations, Inc. and Boeing Aerospace Support Center, Defendants Case No. 2:11-cv-03577-RDP United States District Court, N.D. Alabama, Southern Division Signed June 22, 2018 Counsel J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Peter Tepley, R. Scott Williams, Rumberger, Kirk & Caldwell, P.C., Reginald L. Jeter, Law Office of Celeste P. Armstrong, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, for Plaintiffs Alabama Aircraft Industries Inc., Alabama Aircraft Industries Inc. Birmingham. J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Peter Tepley, R. Scott Williams, Rumberger, Kirk & Caldwell, P.C., Patricia C. Diak, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, for Plaintiff Pemco Aircraft Engineering Services Inc. Alexia R. Brancato, Pro Hac Vice, Craig S. Primis, Erin C. Johnston, John C. O'Quinn, Tia T. Trout-Perez, Kirkland & Ellis LLP, Washington, DC, John Thomas Richie, Reed Thomas Warburton, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendants. Proctor, R. David, United States District Judge ORDER *1 This matter is before the court on AAI's Motion to Strike or Disregard Boeing Declarations in Support of Motion for Summary Judgment. (Doc. # 391). The Motion is fully briefed. (Docs. # 405, 412). For the reasons discussed below, the Motion is due to be denied. I. Background Discovery in this matter was to have been substantially complete in or about February 2016, with remaining discovery before the Special Master being resolved as Reports and Recommendations were issued. (Doc. # 189). On July 21, 2016, after the close of discovery, AAI filed a Motion for Sanctions targeted at Boeing's purported spoliation of electronically stored evidence. (Doc. # 231). In response to the Motion for Sanctions, Boeing filed the declarations of certain witnesses. (Doc. # 244). Thereafter, AAI sought to depose the declarants related solely to the subject of the declarations filed in response to the Motion for Sanctions. (Doc. # 249 at 5). AAI requested that it be permitted to “take depositions of Mark Rabe, Roger Witte, Kyle Smith, Tony Robertson, Pat Finneran, and Professor George Rutherglen.” (Doc. # 249 at 6). The court granted the motion in part and denied it in part. (Doc. # 252). The motion was granted to the extent that the court allowed AAI to re-depose Smith and Rabe regarding the declarations, and allowed a supervised interview of Roger Witte. (Id.). The motion was denied as to Finneran and Robertson because they were no longer employed by Boeing. (Id.). The court stated in its order that “[i]f the testimony of any other witnesses [was to] be presented [regarding the sanctions motion], AAI will be allowed a supervised interview of those witnesses before such testimony is presented.” (Doc. # 256). AAI's current Motion seeks to strike or disregard various declarations of Finneran, Smith, and Patrick Holden that were filed in relation to Boeing's Motion for Summary Judgment. (Doc. # 391). AAI argues that portions of these witnesses' declaration testimony are due to stricken or disregarded because (1) they are not based on personal knowledge, (2) they contain speculation and conclusory allegations[1], and (3) AAI was denied the opportunity to test the “allegations” in Finneran's declaration. (Doc. # 391). Boeing argues that the declarations should not be stricken or disregarded because they satisfy Rule 56(c). (Doc. #405). II. Applicable Legal Principles Federal Rule of Civil Procedure 56(c)(4) details the requirements for affidavits or declarations used to in relation to a motion for summary judgment. Declarations are permissible only when they are made based on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. See Fed. R. Civ. P. 56(c)(4). *2 Where an affidavit represents that the statements therein were “ ‘made on [ ] personal knowledge,’ and does not otherwise qualify the statements at issue as being based on anything other than her personal knowledge,” at least for purposes of Rule 56, a district court is bound to accept those statements as true (unless of course the context demonstrates otherwise). Martin v. Rumsfeld, 137 F. App'x 324, 326 (11th Cir. 2005) (citing Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000) ) (citing Fed.R.Civ.P. 56(c) ); see also Summit Auto Sales, Inc. v. Draco, Inc., 2016 WL 706011, at *3 (N.D. Ala. Feb. 23, 2016) (same); HomeBingo Network, Inc. v. Chayevsky, 428 F. Supp. 2d 1232, at 1239 (S.D. Ala. 2006) (same). “Rule 56[ ]'s personal knowledge requirement prevents statements in affidavits that are based, in part, ‘upon information and belief -- instead of only knowledge -- from raising genuine issues of fact sufficient to defeat summary judgment.’ ” Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (citing Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000) (finding “upon information and belief” insufficient); Fowler v. Southern Bell Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir. 1965) (finding “knowledge, information and belief” insufficient); and Robbins v. Gould, 278 F.2d 116, 118 (5th Cir. 1960) (finding “knowledge and belief” insufficient) ); see also Prowell v. Alabama Dep't of Human Resources, 2012 WL 3848667, at *4 (N.D. Ala. Sept. 5, 2012). To the extent that a declaration is based on a “belief,” that is a key defect. Pace, 283 F.3d at 1279, n.8. Further, at the summary judgment stage, “a court may only consider evidence that is admissible or that could be presented in admissible form.” Rowell v. Bellsouth Corp., 433 F.3d 794, 800 (11th Cir. 2005) (“On motions for summary judgment, we may consider only that evidence which can be reduced to an admissible form.”). It is only the content or substance of the evidence that must be reduced to an admissible form – not the affidavit itself. See, e.g., Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (“Parties may submit affidavits in support of summary judgment, despite fact that affidavits are often inadmissible at trial as hearsay, on theory that the evidence may ultimately be presented at trial in an admissible form.”). III. Discussion In its opposition to AAI's Motion, Boeing notes that AAI challenged portions of the declarations which were not cited in connection with the pending motions for summary judgment. Therefore, it argues, those portions of the Motion are moot. (Doc. # 405 at 8). AAI agrees. (Docs. # 412 at 2, 412-1–412-4). Below, the court addresses each of the challenged paragraphs of the declarations that remain at issue. A. Paragraphs 5-6 in Finneran's August 2016 Declaration The first paragraph of Finneran's declaration states that “[t]he facts set forth in this declaration are from my personal knowledge.” (Doc. 412-1). The challenged paragraphs state that he directed his team to do certain things and why he did those things. (Id.). (“I directed my team to look into potential off ramps ... because Pemco was retreating from commitments....” “I directed my team to look into potential off ramps ... because I was concerned about Pemco's financial health....”) AAI argues that the reasons given by Finneran as to why he “directed his team to look into potential off ramps” are conclusory and do not contain any specific supporting facts. (Doc. # 391 at 3). *3 Finneran was President of Support Systems for Boeing, and in that capacity, he oversaw the KC-135 PDM recompete bid. (Doc. # 368-2). Therefore, the circumstances indicate he would have knowledge about the subjects addressed in his declaration. Moreover, in this context, the statements about Pemco retreating from commitments and its financial condition are not necessarily offered to prove the truth of the matters asserted. Rather, the testimony merely establishes Finneran's perception about these matters and the effect his perceptions had on his decision making. That is, Finneran has explained that his perception regarding these events caused him to direct his team to look into potential off ramps. Paragraphs 5 and 6 of the Finneran declaration stand for nothing more, and in this context, the court is bound to accept the statement as to personal knowledge as true. Martin, 137 F. App'x at 326. To the extent AAI contends that it was denied the opportunity to test the “allegations” in Finneran's declaration filed in support of Boeing's Motion for Summary Judgement, the court disagrees. AAI was given ample opportunity to conduct merits discovery. According to this court's usual procedures, dispositive motions are not due until after the close of discovery. Affidavits and declarations are frequently filed in support of dispositive motions and the parties are not given an additional opportunity to cross examine the witnesses about those affidavits or declarations. The parties are given a complete and fair opportunity to thoroughly explore the issues in the case during the discovery period. Here, there is little question that the parties -- both AAI and Boeing -- have taken full advantage of that opportunity. Therefore, the fact that AAI will not have an additional chance to depose Finneran about the declaration filed in support of Boeing's Motion for Summary Judgment is not a basis to strike the declaration. B. Paragraphs 3, 15, and 23-27 in. Smith's February 2016 Declaration Paragraph 3 of Smith's February 2016 declaration explains Boeing's FY 2008 price target and how it was developed. (Doc. # 368-5). AAI objects to this portion of the declaration because “Smith admitted in his deposition that Boeing's Blue Team creates the win price, that he was not part of and did not know anyone on Boeing's Blue Team, and thus that he had no personal knowledge of what went into the win price here.” (Doc. # 391 at 4-5). AAI cites to pages 172 through 176 of Smith's deposition in support of this argument. (Id.). However, that portion of the deposition does not support the argument. (Doc. # 374-16 at 44-45). Smith testified during his deposition that Boeing's Blue Team developed the FY 2008 numbers, he was not on the Blue Team, and he did not know who was on the Blue Team. (Id.). But that does not mean that Smith had no information about how the price targets were developed. In his deposition, Smith testified that the Blue Team came up with a number through its own analysis, but that the Blue Team then “brief[ed] the capture team on [ ] what their assessments are.” (Doc. # 374-16 at 45). Smith's declaration states that the facts set forth are within his personal knowledge. (Doc. # 368-5). His deposition establishes that the Blue Team briefed others on their assessments. (Doc. # 374-16 at 45). AAI's arguments go to the credibility of Smith's assertion that he possesses personal knowledge of the matters at issue, not their Rule 56 admissibility. But the court is not to assess credibility in making a Rule 56 finding but rather is bound to accept Smith's statement as to personal knowledge as true. Martin, 137 F. App'x at 326. Moreover, even if Smith's statements are based on hearsay, they are admissible in relation to the motions for summary judgment if they could be presented in admissible form at trial. Rowell, 433 F.3d at 800. Paragraph 15 of Smith's February 2016 declaration discusses “IT hours estimates” and pricing. (Doc. # 368-5). AAI moves to strike this paragraph because “Boeing produced no documents showing that Smith was, himself, involved in compilation, evaluation or testing of IT numbers....” (Doc. # 391 at 5). AAI asserts that this paragraph is “not stated on his personal knowledge.” (Id.). However, Smith served as an estimator for Boeing who worked on the KC-135 PDM recompete bid that is at issue in this case. (Doc. # 368-5). Smith's declaration states that the facts set forth are within his personal knowledge. (Id.). Therefore, the court is bound to accept Smith's statement as to his personal knowledge of these matters. Martin, 137 F. App'x at 326. Further, even if Smith's statements are based on hearsay, they are admissible in relation to the motions for summary judgment if they could be presented in admissible form at trial. Rowell, 433 F.3d at 800. *4 Next, AAI seeks to strike paragraphs 23 through 27 of Smith's February 2016 declaration because it asserts there is contrary evidence in the record. (Doc. # 391 at 5). But this is plainly an improper basis to strike these paragraphs. The statements in the paragraphs are clearly based on personal knowledge. (Doc. # 368-5) (Smith indicating “I did not,” “had no impact on my preparation,” “I only used.”). AAI's argument goes to credibility and weight, not admissibility. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). C. Paragraph 6 in Smith's August 2016 Declaration AAI argues that paragraph 6 of Smith's August 2016 declaration contains “improper speculation[ ] about what other individuals know or understand” and that his statements are “belied by undisputed evidence.” First, this paragraph is based on Smith's personal knowledge during his employment with Boeing. (Doc. # 374-8) (Smith indicating “I have never heard,” “I did not [ ] do,” “I am not aware.”). And, to the extent that there is evidence which contradicts the declaration, again that is not a basis to strike it. As noted above, credibility determinations as to disputed issues of fact are for a jury, not a judge. Anderson, 477 U.S. at 255. D. Paragraphs 5 and 7-8 in Holden's August 2016 Declaration AAI argues that Holden does not have personal knowledge regarding paragraph 5 of his August 2016 declaration. This argument requires the court to step into the forest and look at trees. In paragraph 5 Holden states, “I never opened either sealed envelope, and to the best of my knowledge no one else at Boeing opened wither sealed envelope at any point.” (Doc. # 376-23). But the paragraph at issue indicates that Holden is testifying about his personal knowledge. AAI conflates a statement about the declarant's knowledge with one of belief. This paragraph does not indicate that no one else actually opened the envelope. It merely establishes that Holden was not aware of anyone else opening the envelope. This is clearly within his personal knowledge. In paragraph 7, Holden gives his recollection about when he returned the second, unopened envelope. The fact that Holden states what he “believes” about the timing merely shows that the testimony is expressly an estimate or guess. The court is perfectly capable of evaluating this paragraph in that light, and AAI remain free to present contrary evidence. In paragraph 8, Holden again qualifies the extent of his personal knowledge with the phrase “to the best of my recollection.” (Doc. # 376-23). (Holden indicating “I did not log,” “I did not send.”) In this context, this paragraph merely establishes that Holden does not recall doing either of the actions listed. Of course, this leaves open the possibility that his recollection may be proved incorrect by other, contradictory evidence. To be sure, the court is fully capable of evaluating this paragraph in that light. And, again, in any event, credibility determinations are for a jury, not a judge. Anderson. 477 U.S. at 255. IV. Conclusion For all of the foregoing reasons, AAI's Motion to Strike or Disregard Boeing Declarations in Support of Motion for Summary Judgment (Doc. # 391) is DENIED. DONE and ORDERED this June 22, 2018. Footnotes [1] This argument seems to suggest that AAI misapprehends the difference between a pleading and an affidavit or declaration. A pleading makes allegations. However, even if one disagrees with its contents, an affidavit or declaration consists of sworn testimony which constitutes evidence.