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The “Sham Affidavit” Rule: Not Quite As Broad as You Might Have Thought

Appellate Litigation Update Brian A. Howie, Lauren E. Stine

In a pair of recent Ninth Circuit decisions, Nelson v. City of Davis, 2009 571 F.3d 924 (9th Cir. July 9, 2009), and Van Asdale v. International Game Technology, ---F.3d ---, 2009 WL 2461906 (9th Cir. Aug. 13, 2009), the court narrowed the scope of the "sham affidavit" doctrine and emphasized that it should be applied with "caution."

In Nelson, police officers called to a rowdy college party were assaulted with bottles by the partygoers. To disperse the crowd, the officers fired "pepperball" launchers. The plaintiff, Nelson, was struck in the eye by a pepperball and suffered permanent injuries as a result. Nelson filed suit against the officers and others. During his deposition, Nelson testified that he was struck in the eye by a pepperball as soon as he moved onto a breezeway near the party.  This testimony undercut his claim that the police had intentionally targeted him. Two other witnesses, however, testified that Nelson had been standing outside for some time before he was struck. Defendants moved for summary judgment, arguing that any inference that Nelson was the intended target of the pepperball was belied by his own testimony and that he could not use the testimony of the two other witnesses to create a factual dispute. The district court agreed, granted summary judgment and dismissed the case. Nelson appealed.

The Ninth Circuit began its analysis by reciting the general rule that a party cannot create an issue of fact by submitting an affidavit that contradicts his own deposition testimony. Such an affidavit is called a "sham affidavit." The court recognized, however, that the "sham affidavit" rule has limits. Among other things, the district court must make a factual determination that the contradiction is, in fact, a "sham." In Nelson's case, the court concluded that the rule did not even apply because the disputed or contradictory testimony came from a third-party witness. The court reasoned that the "rationale underlying the sham affidavit rule is that a party ought not be allowed to manufacture a bogus dispute with himself to defeat summary judgment." Such a rationale does not apply when the dispute arises from the testimony of other witnesses.

In the Van Asdale case, the court dealt for the first time with a claim under "whistleblower" provisions of the Sarbanes-Oxley Act. There, the plaintiffs filed suit against their former employer after they were terminated because, as they contended, they had reported fraud in connection with a corporate merger. The district court granted the employer's motion for summary judgment because it would not consider an affidavit from one of the defendants that supposedly contradicted his deposition. As in Nelson, the Ninth Circuit reversed the grant of summary judgment and focused on the fact that the district court had failed to satisfy the two conditions for invoking the sham affidavit rule: (1) that there be a "specific factual finding that the affidavit was a sham" and (2) that the inconsistency between the deposition and the affidavit be "clear and unambiguous." Because the district court failed to make the necessary findings and because the deposition and the affidavit were not clearly inconsistent, the court held that it was an error to exclude the affidavit.

In the wake of Nelson and Van Asdale, the sham affidavit doctrine, in the Ninth Circuit in particular, cannot be seen as a sweeping rule that bars any third-party testimony or an affidavit that is arguably inconsistent with deposition testimony. The rule will be applied with caution and requires specific findings that the inconsistency is, in fact, a "sham" and that the inconsistency is, in fact, clear and unambiguous. The sham affidavit rule reaches no further than its purpose.

If you have any questions about the sham affidavit rule, contact Brian A. Howie at 602-229-5405 / [email protected] or Lauren Elliott Stine at 602-229-5474 / [email protected].

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