Commercial Litigation and Arbitration

Limits of the Sham Affidavit Doctrine

From Concordance Corp. v., Inc., 2009 U.S. Dist. LEXIS 55359 (D.Del. June 30, 2009):

"A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." [Jiminex v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).]

"[A] party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.... When a party does not explain the contradiction between the subsequent affidavit and the prior deposition, the alleged factual issue in dispute can be perceived as a "sham," thereby not creating an impediment to a grant of summary judgment based on the deposition. [Baer v. Chase, 392 F.3d 609,624 (3d Cir. 2004) (citations omitted).]

The doctrine does not apply where "the affiant was 'understandably' mistaken, confused, . . . not in possession of all the facts during the previous deposition . . . [or] offers a 'satisfactory explanation' for the conflict." [Jiminez v. All A. Rathskeller, Inc. , 503 F.3d 247, 254 (3d Cir. 2007) (citing Baer, 392 F.3d at 625; Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991)).]

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