The Sham Affidavit – Lessons in Patience
For years while in private practice I was fascinated with witnesses at depositions who claimed, question after question, that they just “couldn’t recall.” Lawyers present at those deposition grew frustrated at either the witness for such recalcitrance, or else at me for continuing to ask dozens of straight-forward questions while never seeming to obtain “results.” But, au contraire, Pierre. I learned about the Sham Affidavit Doctrine early in my career. That’s when a defensive affidavit (or declaration) is presented in opposition to a Motion for Summary Judgment that suddenly has all of the “disputed facts” miraculously appear by the earlier forgetful deponent. That declaration is destined to be struck by the Court.
Yesterday, we were reminded of this Rule. In the Ninth Circuit’s Yeager v. Bowlin (yes, the Speed of Sound General Chuck Yeager) (9th Cir. Sept. 10, 2012), a three-judge panel on Monday ruled an affidavit General Yeager filed with the district court was a ‘sham’ because it included extensive details he claimed not to recall during a deposition three months earlier….” Sham Affidavit Rule. Just like taking the 5th in civil matters, “I don’t recall” has significant consequences as well. This is a case that should be reviewed by all litigators, and passed along to their clients.
Hon. Scott C. Clarkson
United States Bankruptcy Judge