Defense counsel, during the course of taking plaintiff’s
deposition in an employment case, extracts damning admissions. The defense, relying on those admissions. In opposition, Plaintiff submits his/her own
affidavit addressing and attempting to moderate, qualify, or deny the damning
admissions. Defense asserts that
Plaintiff’s affidavit is a so-called “sham” affidavit. Plaintiff’s counsel argues that it merely “clarifies”
the plaintiff’s deposition testimony and should thus be considered.
Sound familiar?
Or, Defendant moves for summary judgment, and Plaintiff
files an affidavit attempting to establish disputed material facts. Defendant says that plaintiff’s affidavit is
self-serving. Plaintiff asserts that all
testimony by parties is self-serving, and that her/his self-serving affidavit
is no different, and should be considered.
Sound familiar?
How do the courts approach these issues?
1.
Sham
Affidavits
The first example above demonstrates what is sometimes
called a “sham” affidavit. The Fourth
Circuit, in Barwick v. Celotex Corp.,
described the “sham affidavit” rule as follows: [a] genuine issue of material
fact is not created where the only issue of fact is to determine which of the
two conflicting versions of plaintiff’s testimony is correct.” 736 F.2d 946, 960 (4th Cir. 1984). Rather than submit such an issue to the
factfinder for determination, the Fourth Circuit held that it was appropriate
to strike the affidavit. Id. Similarly, in Perma Research & Dev. Co. v. The Singer Co., the Second Circuit
held that a party cannot create “sham issues of fact” to defeat summary
judgment by contradicting earlier deposition testimony in a subsequent
affidavit. 410 F.2d 572, 578 (1969); see also Radobenko v. Automated Equip. Co.,
520 F.2d 540 (9th Cir. 1975) (“sham issues…should not subject the defendants to
the burden of a trial”).
More recently, however, courts have limited the “sham
affidavit” rule to situations where an affidavit seeks to flatly contradict
earlier deposition testimony. In Strickland v. Norfolk S. Ry. Co., the
Eleventh Circuit held that it is only appropriate to disregard an affidavit as
a sham when “there [is] no way” that conflicting statements could be read
together but that “[w]here a fact-finder is required to weigh a deponent’s
credibility, summary judgment is simply improper.” 692 F.3d 1151, 1161-62 (11th Cir. 2012). Similarly, in Kennett-Murray Corp. v. Bone, the Fifth Circuit explained that “a
district court must consider all the evidence before it and cannot disregard a
party’s affidavit merely because it conflicts to some degree with an earlier
deposition.” 622 F.2d 887, 893-94 (5th
Cir. 1980).
In other words, counsel trying to explain her client’s
deposition testimony should be careful not to outright contradict that
testimony, at the risk of having the affidavit labeled a “sham”, and vulnerable
to a motion to strike. Absent such a
flat contradiction, however, many courts are inclined to permit any issues of
credibility proceed to the factfinder.
2. Self-Serving Affidavits
More commonly defense counsel will object to a plaintiff’s
affidavit as “self-serving” in an attempt to persuade the trial court to exclude
it from consideration on summary judgment.
The appellate courts have soundly rejected this approach with increasing
finality. The Seventh Circuit has been particularly
vocal on this issue. For example, in Widmar v. Sun Chemicals Corp., the
Seventh Circuit reprimanded recalcitrant lower courts, stating “[w]e remind
district courts of our attempts to rid our circuit’s opinions of language
critical of the ‘self-serving’ affidavit.”
772 F.3d 457 (7th Cir. 2014). The
court went on to state:
We hope this discussion lays to rest the misconception that
evidence presented in a 'self-serving' affidavit is never sufficient to thwart
a summary judgment motion. Provided that the evidence meets the usual
requirements for evidence presented on summary judgment including the
requirements that it be based on personal knowledge and that it set forth
specific facts showing that there is a genuine issue for trial a
self-serving affidavit is an acceptable method for a non-moving party to
present evidence of disputed material facts."
Id. at
460, n.1. The prior year the Seventh
Circuit, in Hill v. Tangherlini,
expressly overruled some fifteen of its precedents “to the extent that they
suggest a plaintiff may not rely on ‘self-serving’ evidence to create a
material factual dispute[.]” 724 F.3d
965, 967 n.1 (7th Cir. 2013). In recent
years, the Seventh Circuit has repeated its rule regarding “sham” affidavits on
many occasions. See Berry v. Chicago Transit
Auth.,
618 F.3d 688, 691 (7th Cir. 2010), quoted
in Navejar v. Iyiola, 718 F.3d 692, 69798 (7th Cir. 2013) (reversing
summary judgment based on error discounting partys affidavit as self-serving); accord, Darchak v. City of Chicago Bd. of
Educ., 580 F.3d 622, 63132 (7th Cir. 2009); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006).
Other circuits have reached a similar conclusion to that of
the Seventh Circuit. See Kenney v. Swift Transp., Inc., 347
F.3d 1041, 1046 (8th Cir. 2003) (Holding that “[Plaintiff’s] testimony [at
deposition] is sufficient for a jury to find that [Defendant’s] proffered
nondiscriminatory reason for not hiring him is pretextual.”); U.S. One Parcel of Real Property, 904
F.2d 487, 492 (9th Cir. 1990) (self-serving declaration can be used to survive
summary judgment if it is not conclusory); Lupyan
v. Corinthian Colleges Inc., 761 F.3d 314, 32021 (3d Cir. 2014). In Price
v. Time Inc., the Eleventh Circuit succinctly stated that: “Courts
routinely and properly deny summary judgment on the basis of a party's sworn
testimony even though it is self-serving[.]”
416 F.3d 1327, 45 (11th Cir. 2005).
In Feliciana v. City of Miami
Beach, a criminal case, the Court elaborated that:
[Defendant’s] sworn statements are no more
conclusory, self-serving, or unsubstantiated by objective evidence than the
[police] officers’ assertions…as a general principle, a plaintiff's testimony
cannot be discounted on summary judgment unless it is blatantly contradicted by
the record, blatantly inconsistent, or incredible as a matter of law, meaning
that it relates to facts that could not have possible been observed or events
that are contrary to the laws of nature.
707 F.3d 1244, 1252-53 (11th Cir. 2013).
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