Download associated file: FJC Rule 56g Study.pdf 

Rule 56(g) of the Federal Rules of Civil Procedure, as restyled effective December 1, 2007, provides:

(g) Affidavit Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or attorney may also be held in contempt.

The Federal Judicial Center (Joe Cecil and George Cort) studied the use of Rule 56(g) last spring at the request of the Advisory Committee on the Federal Rules of Civil Procedure. As reflected in their attached memorandum to Judge Michael Baylson of the Committee, dated April 2, 2007, their ‛search of CM/ECF codes and docket entries for 273,193 cases terminated in FY2006 revealed no instance of sanctions awarded under FRCivP 56(g) for a bad faith affidavit“ — and only one movant (a pro se plaintiff) who sought sanctions under the rule.

The number of motions since 1/1/06 appears to have doubled. The defendants in Bowers v. Rector and Visitors of Univ. of Va., 2007 U.S. Dist. LEXIS 75064 (W.D. Va. Oct. 9, 2007), moved for Rule 56(g) sanctions against the plaintiff (who was suing for wrongful termination) because her ten-page affidavit, in the words of Magistrate Judge James G. Welsh, ‛offered patently inadmissible he[ar]say, accused one defendant of being a ‘compulsive liar,’ and alleged witness intimidation on behalf of UVa by its attorneys and others. This voluminous submission also included at least six complete deposition transcripts, approximately fifty-one unauthenticated e-mails, unauthenticated print-outs from a Virginia Employment Commission web page and a UVa web page, and three irrelevant NAACP documents.“ The defendants moved to strike the affidavit ,arguing that its contents were inadmissible, and for 56(g) sanctions to be imposed on the plaintiff. In what the Court described as ‛an unorthodox attempt to cure the defendants' objection to the e-mail traffic and copies of web pages, plaintiff's counsel responded by submitting her personal affidavit in which she stated that the contested exhibits were in fact ‘authentic’ because the e-mails had been obtained from the defendants during the course of discovery and the web pages were taken from ‘published’ internet web sites,“ adding another approximately 350 pages of material and earning counsel her own 56(g) motion.

The Court’s explication of two requirements of Rule 56(g) illustrates why it is rarely invoked and even more rarely invoked successfully.

(1) ‛Although one can read Rule 56(g) to invoke an objective, or reasonable person, standard, it is generally regarded as subjective and requires the offending party to know that the affidavit was false, or was to be used solely for delay, or was recklessly prepared, etc.“ (citations and internal quotations omitted).

(2) ‛In addition to its invocation of a subjective standard, Rule 56(g) also imposes an elevated burden of proof. There must be ‘clear evidence' of bad faith or vexatiousness.... [T]here must be ‘that measure or degree of proof’ which produces in the mind of the fact finder ‘a firm belief or conviction’ it is ‘more than a mere preponderance,’ but it is less than clear and unequivocal" (citing numerous cases and one fine sanctions treatise).

Held: Rule 56(g) sanctions denied for failure to carry this burden of proof.