Sham Affidavit Doctrine

The "sham affidavit" doctrine is used where a party's subsequent, favorable testimony contradicts the party's prior testimony. The doctrine is typically used to prevent a party from creating an issue of material fact to defeat a motion for summary judgment by submitting a declaration or affidavit that contradicts prior deposition testimony.[1] The doctrine does not apply if the prior and subsequent testimony are not actually contradictory, or if the issue was not fully explored in prior testimony.[2] The doctrine may be used to exclude any sworn statement or document signed under penalty of perjury in compliance with 28 U.S.C. section 1746, or state law.[3]____________________________________________________________________________[1]Perma Research &' Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)("[i]f a party who has been examined at length on deposition 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."); U.S. v. Zhong, 2012 WL 6201348, at *10 (N. D. Cal. Dec. 12, 2012) ("some form of the sham affidavit rule is necessary" as the summary judgment procedure is "an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action,'" but noting that "[a]ggressive invocation of the rule also threatens to ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys.").[2]Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000) ("does not apply where the later sworn assertion addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition").[3]Nationwide Mut. Ins. Co. v. Shaw, 491 Fed. Appx. 353, 360-362 (3d Cir. 2012) (applying sham affidavit doctrine where prior testimony contradicted declaration filed after motion for summary judgment, and where declarant could not explain conflicting statements or offer corroborating evidence); Moulds v. Bullard, 345 Fed. Appx. 387, 391 (11th Cir. 2009) ("[S]pecific facts pled in a sworn complaint must be considered in opposition to summary judgment").