A Sham or Just Self-Serving? Either Way, Affidavits Are Admissible

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). 

Despite the trend towards recognition that “self-serving” affidavits are perfectly admissible, and indeed capable of defeating a motion for summary judgment evening standing alone, many courts continue, without analysis, to strike such affidavits from the record. Hopefully, armed with the arguments and cases herein, practitioners will have better luck in the future in those courts.

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