Tag Archives: sham affidavit

Chuck Yeager’s Sham Affidavit Not "the Right Stuff"

Practitioners should be cognizant of the “Sham Affidavit” rule and how it can be applied to self-serving attempts to manufacture issues of fact for the purpose of defeating summary judgment. In an excellent article titled, “Ignorance Is Not Bliss: ‘Sham Affidavit’ In 9th Cir.” published in Law 360 on October 29, 2012, Jones Day lawyers,Eric K. Swanholt, Michael S. McCauley and Craig M. Hirsch, discuss the Ninth Circuit’s reaffirmation of the “Sham Affidavit” rule in Yeager v. Bowlin, 693 F.3d 1076 (9th Cir. 2012).  
As discussed by the trio of Jones Day authors, every lawyer has no doubt sat through a deposition where a witness answers question after question “I don’t recall… I don’t recall… I don’t recall.” Even after being shown documents designed to refresh the witness recollection, the witness fails to recall the most basic facts concerning his claim. In Yeager v. Bowlin, the Ninth Circuit recently strengthened a weapon for combatting the forgetful witness. The “Sham Affidavit” rule states that “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” The rule prevents a party from supporting or opposing the motion with a declaration attesting to facts that directly contradict the witness’s deposition testimony.

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