Bill:Bear in mind that the discovery rules (particularly requests for admissions) are intended to help to narrow and focus the issues, dispensing with the necessity of proof of uncontested matters. By seeking authentication, you show your good faith efforts to make a timely presentation of the evidence to the opposing side, giving them ample opportunity to confront and impeach such evidence IF THEY CAN. Under the rules in most places, the party responding to a request fro admissions has some duty to admit matters known to be true to minimize the cost of proving such a matter.
While I believe that the strongest authentication would be to present the document to MERS for authentication within an interrogatory OR as an exhibit to a deposition on written questions, I believe that a defendant should also be able to get it into evidence by presenting it with an affidavit showing that the copy of the brief furnished to the court was obtained directly from the Clerk of the Nebraska Supreme Court, that it is the very doument furnished by the Clerk, and that the Clerk does not furnish certified copies.
It would probably be better to write to the Nebraska Supreme Court and to ask for a certified copy.
If you can get them to send you a letter stating that they do not give out certified copies, I think that could help, too. It shows that you TRIED TO GET a certified copy, but that this wasn't a possibility.
I would include the receipt for payment of the copy, the original or a color copy of the mailing envelope from the Clerk transmitting the brief and possibly even a copy of the cancelled check remitting payment. That sort of supporting documentation laces things up fairly nicely further confirming the facts recited within your affidavit of authenticity.
Even so, there is some value in presenting the brief as an exhibit to an interrogatory to the plaintiff (other than MERS). While the plaintiff will almost certainly object and then DENY any knowledge or awareness of the MERS Appellant's Brief (they can probably validly claim to have no knowledge as to the authenticity of the brief), this can still be helpful for two reasons.
First, IF they were to later investigate in any way and to develop some doubts or suspicions as to its authenticity, they might have a duty under the rules to supplement their response to explain their doubts or misgivings and in failing to do so might be precluded from introducing such arguments.
Second, and perhaps more importantly, you can thereby show that you had presented the document to the plaintiff well in advance of the summary judgment hearing or trial and afforded the plaintiff an opportunity to investigate teh authenticity of the document.
So even though presentation of the MERS Appellant's Brief may not yield you an affirmative authentication or an admission as to its validity, it makes it much more difficult for the plaintiff to object to the document as an exhibit and to deny its authenticity later. (Where a defendant is not tightly constrained as to the number of interrogatories or admissions, I would suggest asking for authentication both within an interrogatory AND as a request for admission.)
Be sure to check the Rules of Evidence for YOUR jurisdiction to ascertain the requisites for admissibility. These VARY from jurisdicition to jurisdiction.
While it would be better if one could obtain a certified copy of a document, there will always be many instances where one cannot do so. For example, if I sent you a letter. You could validly authenticate that you had received such a letter in the mail, etc. You couldn't testify that I had SENT the letter. But your identification that this was the letter you had RECEIVED would be rather persuasive.
While I could certainly deny sending the letter, it this was UNTRUE, I would do so at my peril.
And once you put that letter into evidence with your authentication of its receipt, the burden would usually shift to the other side to show that the document was not what it was purported to be.
The existence and introduction of the Supreme Court's published decision in the Nebraska case is certainly rather persuasive supporting evidence of the authenticity of the brief. The existence of the published decision shows rather conclusively that there was a case before the Nebraska Supreme Court of the style, parties and case number shown on the Appellant's Brief. Moreover, the fact that the decision is consistent with the facts and allegations set forth within the brief gives it further weight and authenticity.
Bear in mind that in most places attorneys have some duty under the rules to present only those arguments which can be made in good faith. While the ethical bankruptcy of the foreclosure mill law firms makes it especially important to dot the "i"s and cross the "t"s, I wouldn't become overly concerned that the plaintiff will succeed in excluding a document which was obtained directly from the Clerk of the Nebraska Supreme Court, is authenticated by a valid affidavit and which was presented to the plaintiff for autnetication well in advance of hearing or trial.
I WOULD caution against someone merely downloading a copy of the brief from the Internet and seeking to use the downloaded copy. Let's face it. Documents found on the Internet are or uneven quality and authenticity. If someone hand carrried a downloaded copy into court without an authenticating affidavit, I would expect that there is more than a little peril that the document might be excluded, particularly if furnished as summary judgment evidence. Follow the Rules of Civil Procedure and the Rules of Evidence and you should be fine!