Commercial Litigation and Arbitration

Sham Affidavit Rule — Remedy: Strike Only Those Portions of Affidavit That Contradict Prior Deposition Testimony

Maisha v. Univ. of NC, 2015 U.S. Dist. LEXIS 4671 (M.D.N.C. Jan. 15, 2015):

A party may not create a genuine issue of material fact by "filing [*2]  a later affidavit that flatly contradicts that party's earlier sworn deposition." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see also In re Family Dollar FLSA Litig., 637 F.3d 508, 512-13 (4th Cir. 2011) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." (quoting Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984))).




As these examples make clear, Mr. Maisha's declaration includes impermissible attempts to bolster or contradict his prior sworn testimony. [*6]  The defendants ask the Court to strike the entire affidavit based on the Fourth Circuit's determination that a court may disregard a sham affidavit. See In re Family Dollar FLSA Litig., 637 F.3d at 513; Jackson v. Consol. Coal Co., 21 F.3d 422 (table), 1994 WL 89801, at *3 (4th Cir. Mar. 22, 1994) (unpublished and per curiam). In In re Family Dollar, however, the court disregarded only those parts of the affidavit that were inconsistent with the witness's deposition and did not strike the entire deposition. In re Family Dollar, 637 F.3d at 513. The same is true in Jackson. See Jackson, 21 F.3d at *2-3. Here, striking the entire affidavit seems overly harsh, as inconsistencies have been identified in only about ten percent of the paragraphs. Instead, the Court will disregard the parts of the affidavit that are inconsistent with Mr. Maisha's deposition testimony***.

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