Court Could Not Rely on Exhibits That Were Not Authenticated by an Affidavit

In  Jang v. Clear Sky Fin., LLC, 2026 WL 1101722 (Appl. Ct. Md. Apr. 23, 2026)(unreported),[1] plaintiff sued for alleged fraudulent conveyances made using via a “shell game.” The Appellate Court of Maryland affirmed the trial court’s imposition of sanctions where the defendant avoided discovery by means of a “shell game” of revolving attorneys, extensions of time, and continuances. However, it ordered a limited remand in part due to the trial court’s reliance on exhibits that were not supported by an affidavit. The Court wrote that:

• “Clear Sky alleged that Ms. De Matteo executed multiple trust mortgage notes in favor of it, as creditor, and failed to repay them.  Ms. De Matteo and Mr. Jang, alongside the entities, played a ‘shell game’ to hide Ms. De Matteo’s assets from her creditors.”
• “Before the agreed final deadline, though, Mr. Jang and the entities started up a second ‘shell game’…. ‘Mr. Jang has been running a shell game similar to … what he was doing with the loans and the houses with Ms. DeMatteo…. He’s on his fourth …. maybe fifth [counsel]….’”
• “The record of Mr. Jang’s years of ‘shell game[s]’ supports the circuit court’s decision to exercise its discretion to impose sanctions and, specifically, select the ultimate penalty—judgment—after Mr. Jang violated an order to compel discovery willfully and appears to have perjured himself in at least one sworn answer to an interrogatory.”

However, the Appellate Court disagreed with the trial court’s reliance on exhibits that were not supported by an affidavit or declaration, writing:  “Maryland Rule 2-433 explicitly allows a sanctioning court to ‘rely on affidavits’ to ‘establish the truth of any averment by evidence[,]’….”

Here, however, the defendant argued that “the various exhibits, all in the record, on which the sanctioning court relied were not admitted into evidence at such a hearing.”

The Court wrote: “But if they were incorporated by reference into an affidavit in the record, the sanctioning court would be allowed to rely on those exhibits as well.”

It then continued:

That said, some of the exhibits on which the circuit court relied explicitly, particularly Complaint Exhibits A & B, were not incorporated by reference into a sponsoring affidavit. Under the Rules, then, the sanctioning court was not allowed to rely on those exhibits when establishing remedies. See Md. Rule 2-433(a)(3). This requires us to vacate the remedies portion of the discovery-sanctions judgment since those affidavits that were filed don’t support the remedies fully, see id., and to remand for further proceedings for the circuit court to determine remedies in a manner that complies with Rule 2-433. [emphasis added].

In a parallel context, the principle–that authentication of exhibits to a motion is required–is well-established:

Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007)(emphasis added).

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[1] “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Maryland Rule 1-104(a)(2)(B).”