Introduction.
We have all been in this situation. After diligently poring through documents and spending many hours preparing for the deposition of a key corporate designee, you obtain testimony from the designee or some other corporate witness which supports your motion for summary judgment. You prepare the motion, relying heavily upon the sworn testimony of the corporate designee (or some other company employee or representative) in support of your arguments.
Your opponent, in an effort to raise issues of disputed material fact or, in some situations, to support a cross-motion for summary judgment, obtains an Affidavit from the very witnesses whose testimony you cited in your motion. However, the averments in the Affidavit are completely contrary to the witness' prior sworn deposition testimony. Citing the Affidavit, your opponent argues that the differing "versions" of the facts mandate the denial of summary judgment.
In effect, the witness has changed his or her story just to torpedo your motion. In legal parlance, you are now dealing with a "sham affidavit." Can they get away with such obvious duplicity? Like many answers to legal questions, the answer here is "it depends." When faced with such a situation, you may have recourse by arguing that the affidavit is a "sham," and, as such, should be disregarded by the Court. This article discusses the "sham affidavit doctrine," and how it may be applied to defeat the efforts of your opponent to "change their story" in an effort to avoid summary judgment. The article also briefly contrasts how the doctrine is applied in different federal circuits.
The Doctrine
"The Federal Rules of Civil Procedure do not specifically prescribe how courts should address contradictory subsequent affidavits." Instead, the federal courts have created their own rule called the "sham affidavit doctrine" aimed at combatting these types of issues. A review of the federal circuits confirms that each federal circuit has, in some form, adopted, applied and interpreted the doctrine. The first court to do so was the Second Circuit in Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2nd Cir. 1969). Since then, the doctrine has evolved for the most part as a set of procedural checks and balances. Not all conflicting affidavits are stricken. However, many are stricken. Thus, an exploration of the doctrine in your particular jurisdiction is warranted when faced with such a situation. In some jurisdictions, the court will look for an explanation for the conflict and some will look to what was available to the conflicting witness at the time the allegedly contradictory testimony was provided, including, for example, whether the testimony was offered under cross examination or direct examination, or whether the witness was provided with all of the necessary evidence when he or she testified.
In the Third Circuit, the courts have adopted a more "flexible" approach than other jurisdictions. The court may ignore subsequent affidavits that conflict earlier deposition testimony if there is not "adequate explanation" to explain the discrepancy. The Third Circuit does not believe that all contradictory affidavits are necessarily shams. Rather, it has stated: "when there is independent evidence in the record to bolster an otherwise questionable affidavit, courts generally have refused to disregard the affidavit." "Such corroborating evidence may establish that the affiant was understandably mistaken, confused, or not in possession of all the facts during the previous deposition.
On the other hand, if a party does not explain the contradiction, "it is appropriate for the district court to disregard the subsequent affidavit and the alleged factual issue in dispute as a "sham."
In Jiminez, the Third Circuit analyzed an affidavit that conflicted with a prior deposition by a witness (Duke Gastiger.) The case dealt with a bar patron dying as a result of asphyxiation when he was held down by a security guard. Gastiger was the owner of the establishment where the incident occurred. During his deposition, Gastiger stated that he "never had any conversation with the police personally about restraint." In his subsequently filed affidavit, he offered blatantly contradictory statements about his post-incident discussions with the police." The district court noted that no explanation for this conflict in the deposition and affidavit was provided. Nevertheless, the affidavit was accepted and considered because it was found not to be in "in direct conflict with what was said" at deposition.
In Killingsworth, the Third Circuit upheld the trial court's decision to discredit a new declaration that "directly contradicted" a previous declaration given in a deposition. The court struck the second declaration because during a deposition the plaintiff specified that there was "no mention of an EEO [Equal Employment Opportunity] complaint, but the second declaration specifically stated that she filed out an EEO complaint. The court did not provide any insight as to whether the contradiction was adequately explained, but the stark difference between the two averments was, apparently, too much to ignore.
In the Sixth Circuit, a more rigid approach is applied. The courts have stated that "after a motion for summary judgment has been made, a party may not file an affidavit that contradicts his earlier sworn testimony." If the affidavit directly contradicts prior sworn testimony, "it should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction." "If a party who has been examined at length under oath could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." When there is no direct contradiction the district court should not strike or disregard that affidavit unless the court determines that the affidavit constitutes an attempt to create a sham fact issue. When determining whether such an affidavit is an attempt to create a sham fact issue, courts should consider several factors, including: whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion… the affidavit attempts to explain.
In McClain, a prisoner brought a 1983 claim stating that while in prison he was deprived of his Eighth and Fourteenth Amendment rights by being denied medical care for his acid reflux and high blood pressure. In a deposition, he stated that he was aware of the jail's grievance policies, including the right to appeal a denial. Defendants moved for summary judgment. Plaintiff filed a subsequent declaration stating that he was not made aware of the policies. The trial court granted summary judgment for the defendants, and did not give the subsequent declaration any weight because it clearly conflicted with the deposition testimony. The Court of Appeals upheld the decision, finding that plaintiff was clearly attempting to create a sham issue of fact, and has subject to cross-examination at his deposition.
The general rule in the Ninth Circuit is that "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." "The very object of summary judgment is to separate real and genuine issues from those that are formal or pretended so that only the former may subject the moving party to the burden of trial." The rule "does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. In Radobenko v. Automated Equipment Corp., 520 F.2d 540, 544 (9th Cir. 1975), the court stated that the district court must make a factual determination that the contradiction was actually a sham." The inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking an affidavit. Additionally, "the nonmoving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit."
In Yeager, the Ninth Circuit articulated its approach to striking a sham affidavit. The case reached the Court of Appeals after summary judgment was granted to defendants. While being deposed, plaintiff did not recall the answers to at least two hundred questions. The defendants then moved for summary judgment. In response, plaintiff submitted an affidavit that answered the previously unanswered questions. The trial court held that this subsequent declaration was a sham. On appeal, the trial court's ruling was affirmed and agreed that the subsequent affidavit was indeed a sham. The court indicated that "newly-remembered facts, or new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking of a declaration as a sham." However, in this particular case, "the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions." The court found it important that during plaintiff's deposition, defense counsel attempted to refresh his recollection as well as the lack of explanation for the newly remembered answers.
The aforementioned courts look for flat contradictions that create sham issues, but also allow for an explanation as to why the contradiction exists. Additionally, as displayed in Yeager, the court will look to the context surrounding the confliction, including the ability to refresh someone's recollection in a deposition.
Conclusion
All of the federal circuits have, to varying degrees, established rules to address sham affidavits. The differences, as noted above, are subtle. The key is being aware that the doctrine exists and knowing that, when faced with blatantly contradictory averments in a post-deposition affidavit, you have a potential remedy. If the court finds the affidavit to be a sham, it is free to ignore it.
In general, it can be said that courts are willing to give a contradictory affidavit the benefit of the doubt if there exists in the record some evidence to support the contradictory averments, or if the witness can credibly argue that he or she did not fully understand the questions at deposition. Therefore, it is critically important that, when deposing a witness upon whose testimony you intend to rely in support of a summary judgment motion, you meticulously and thoroughly prepare for the deposition so that the witness is given the opportunity to review all of the relevant records upon which he or she might later rely in his or her sham affidavit. In other words, the more complete and all-encompassing is your questioning at deposition, the more difficult it will be for the sham affiant to cite other facts in the record in support of his or her chicanery. In addition, it is important to elicit testimony from the witness that confirms his or her testimony is complete and certain. The goal is to avoid giving the sham affiant the opportunity to "weasel" out of his or her damning deposition testimony by arguing to the court that he or she was confused or uncertain or not given an opportunity to discuss the entire relevant record. The more complete the deposition, the less likelihood that the court will allow the sham affidavit.
In short, be aware that the doctrine exists, and anticipate its application by diligently preparing for the deposition so the only explanation for the contradictory averments is that they are, indeed, a sham to be ignored.
For more information please contact James Wescoe at jwescoe@wglaw.com or 267.765.4123.
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.