Insight Dealing with Sham Affidavits in Idaho Courts

This article was originally published in the August 2014 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

The sham affidavit rule allows courts to strike contradictory affidavits presented by a party seeking to avoid summary judgment. The concept behind the sham affidavit rule is fairly straightforward. On a motion for summary judgment, the moving party has the burden to show, through affidavits or other admissible evidence, that there are no genuine issues of material fact and that summary judgment would be appropriate as a matter of law.¹

The party opposing summary judgment may then present evidence showing that there is a material issue of fact.² However, it would be unjust for a party to attempt to avoid summary judgment by presenting an affidavit that contradicts the party’s previous sworn testimony.³ For example, if a party testifies during a deposition that, “the northbound light was red” he or she may not later provide an affidavit that states that, “the northbound light was green” This is the sort of clear conflict that the sham affidavit rule protects against.

As discussed below, the Ninth Circuit and the Idaho Federal District Courts allow contradictory affidavits to be stricken under the sham affidavit rule. However, under what circumstances a sham affidavit can be stricken in Idaho state courts is more uncertain.

The Ninth Circuit allows sham affidavits to be stricken

Almost every federal circuit has adopted some form of the sham affidavit rule.⁴ The Ninth Circuit has had a form of the sham affidavit rule since at least 1975⁵ to assist the court in securing the just, speedy and in expensive determination of every action.⁶ Nonetheless, there are variations in the rule’s application.⁷ For example, the Eighth Circuit applies the sham affidavit rule to evidence from non-party witnesses which contradicts sworn testimony from a party.⁸ The Ninth Circuit does not apply the sham affidavit rule in such situations.⁹

The rule utilized by the Ninth Circuit is stated in Kennedy v. Allied Mut. Ins. Co., 952 E2d 262 (9th Cir. 1991):

The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony. [I]f 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.¹⁰

The Court explained this rule, stating that the rule only applied to “sham” testimony “that flatly contradicts earlier testimony in an attempt to ‘create’ an issue of fact and avoid summary judgment.”¹¹ Under this rule, the district court “must make a factual determination that the contradiction was actually a ‘sham’” before it can strike the evidence from the record.¹²

The Ninth Circuit clarified that the sham affidavit rule does not preclude the non-moving party “from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and that minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.”¹³

Further, as discussed above, the Ninth Circuit has indicated that the rule is limited to situations where a party is trying to contradict his/her own testimony. “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. That concern does not necessarily apply when the dispute comes from the sworn deposition testimony of another witness.”¹⁴ Thus, if the evidence presented to avoid summary judgment is from a non-party, the affidavit should not be stricken under the sham affidavit rule.¹⁵

While the Ninth Circuit has adopted the sham affidavit rule, it is rather difficult to find a situation where the rule resulted in an affidavit being stricken. In Kennedy, the affidavit at issue was remanded for a factual determination as to whether it was a sham.¹⁶ In other cases, the Ninth Circuit has found that the sham affidavit rule did not apply because the affidavits were not sufficiently contradictory or for some other reason.¹⁷ Therefore, even though the rule is available to strike contradictory affidavits, absent a complete contradiction, a party should not be surprised to find his/her motion to strike a sham affidavit denied.

Idaho Courts have not clearly adopted the sham affidavit rule

While the Ninth Circuit has adopted the sham affidavit rule, the situation in the Idaho state courts is less clear in light of a 2013 Idaho Supreme Court Case.¹⁸

In 1993, the Idaho Supreme Court held the sham affidavit rule did not apply when the evidence presented was not contradictory. In Tolmie Farms, Inc. v. JR. Simplot Co., Inc., Tolmie submitted an affidavit claiming that a Simplot employee told Tolmie that a particular chemical would improve crop yield.¹⁹

Simplot objected to the affidavit on the grounds that it was completely contradicted by Tolmie’s prior deposition testimony, where Tolmie stated he could not remember what statements were made by the Simplot employee.²⁰ While relying on Kennedy, the Idaho Supreme Court stated that “While we may agree that the purpose of summary judgment is served by a rule that prevents a party from creating sham issues by offering contradictory testimony,” the rule in that case did not apply because the Court found that the affidavit and deposition testimony were not contradictory.²¹

A year later in Matter of Estate of Keeven, the Idaho Court of Appeals decided a similar issue. When it was argued that an affidavit directly contradicted prior deposition testimony, the Court of Appeals stated “a sham affidavit which directly contradicts prior testimony may be disregarded on a summary judgment motion.”²² Despite this, the Court found that while the affidavit at issue was unclear and vague, because it was not directly contradictory to the deposition testimony, the sham affidavit rule did not apply.²³

These two cases seem to indicate that the Idaho Courts could apply the sham affidavit rule in an appropriate situation. However, the Idaho Supreme Court sidestepped the question of adopting the rule in several ensuing cases. In Frazier v. JR. Simplot Co., 136 Idaho 100, 103-04, 29 P3d 936, 939-40 (2001), the Idaho Supreme Court declined to adopt the rule because the affidavit at issue was not contradictory.²⁴ The Court reiterated that Tolmie Farms did not adopt the logic of Kennedy because the affidavit at issue in Tolmie Farms was not deemed contradictory.²⁵ In Mains v. Cach, the Idaho Supreme Court allowed an allegedly contradictory affidavit of an expert witness to be admitted because Rule 26(e)(1)(B) specifically allows experts to supplement their testimony.²⁶ In Arregui v. Gallegos-Main, the Idaho Supreme Court declined to address the sham affidavit rule because the affidavit in question was deemed untimely, and therefore inadmissible.²⁷

Most recently in the 2013 case, Major v. Sec. Equip. Corp., the Idaho Supreme Court reversed a trial court’s decision to strike an allegedly sham affidavit on a rather ambiguous basis.²⁸ The Court noted that the sham affidavit doctrine had never been adopted, then stated:

However, the Court of Appeals has previously stated that an affidavit which directly contradicts prior testimony may be disregarded as a sham affidavit on a summary judgment motion. See In re Estate of Keeven, 126 Idaho 290, 298, 882 P.2d 457, 465 (Ct.App.1994). “[A]ll tribunals inferior to the Court of Appeals are obligated to abide by decisions issued by the Court of Appeals.” State v. Guzman, 122 Idaho 981, 986, 842 P.2d 660, 665 (1992). Therefore, to the extent that the district court was following precedent from the Court of Appeals, the district court did not err in striking the affidavit.²⁹

The Supreme Court went on to find that the affidavit at issue was not sufficiently contradictory for the sham affidavit rule to apply.³⁰ The Supreme Court then made this ambiguous statement:

This Court has never adopted the sham affidavit doctrine. We roundly criticized the doctrine in Mains because a sham affidavit finding necessarily turns on a credibility finding as well as a finding of bad faith. That is beyond the power of the trial courts at the summary judgment phase.

Although the trial court followed Court of Appeals precedent, it is however an abuse of discretion to misinterpret an affidavit or deposition. That is what has happened here.³¹

This statement seems to indicate that the trial court erred in striking the affidavit at issue, not because the sham affidavit rule has been rejected by Idaho courts, but because the affidavit was misinterpreted and was not sufficiently contradictory. While it could alternately be viewed as rejecting or limiting the sham affidavit rule, the Supreme Court did not explicitly overrule In re Estate of Keeven or Tolmie Farms, nor did it state that the sham affidavit rule was rejected outright. Thus, there may still be room for the sham affidavit rule in Idaho state courts.³²

The sham affidavit rule seems to be accepted though not readily applicable

Based on the foregoing, both federal and state courts in Idaho are willing to accept the concept of a sham affidavit rule, even though it may be difficult to get an affidavit stricken under it. In federal courts, it is unlikely that an affidavit will be deemed a sham unless it flatly and directly contradicts a prior statement from a party themselves. In Idaho state courts, the situation seems more precarious. Under Frazier, Mains, and Major, the Idaho Supreme Court – while not rejecting the rule – has repeated that they have not adopted the sham affidavit rule. In contrast, under Tolmie Farms and Matter of Estate of Keeven, both the Idaho Supreme Court and the Idaho Court of Appeals indicate that there may be a benefit from having such a rule, even though the situation to adopt it has not yet arrived. Therefore, it seems that until the Idaho Supreme Court specifically rejects the sham affidavit rule, it may be available to litigants, but may best be used when the testimony is directly contradictory.

Endnotes

1. See F.R.C.P. 56(a); Idaho R. Civ. Proc. 56(c).
2. See F.R.C.R 56(c); Idaho R. Civ. Proc. 56(e).
3. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (quoting Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir.1 985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986)).
4. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07, 119 S. Ct. 1597, 1604, 143 L. Ed. 2d 966 (1999) (listing cases discussing contradictory testimony).
5. See Radobenko v. Automated Equip. Corp., 520 F.2d 540,543-44 (9th Cir. 1975).
6. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (“The Supreme Court has explained that [s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action. Some form of the sham affidavit rule is necessary to maintain this principle.”).
7. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991) (discussing different applications of the rule in the Fifth, Seventh, Eighth, Ninth and Tenth Circuits).
8. Prosser v. Ross, 70 F.3d 1005, 1008-09 (8th Cir. 1995).
9. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009); DelJack, Inc. v. U.S. Bank Nat. Ass’n, 1:11 -CV-00065-EJL, 2012 WL 4482049 at *11 (D. Idaho Sept. 26, 2012).
10. Kennedy, 952 F.2d at 266 (internal citations and quotation marks omitted).
11. Id. at 267.
12. Id. Another district court has stated that “A contradictory affidavit, however, is not necessarily a sham affidavit. Rather, the court must make a factual determination that the contradiction was actually a ‘sham’ as opposed to an attempt to explain certain aspects of confused deposition testimony, for example” Zurich Am. Ins. Co. v. Coeur Rochester, Inc., 720 F. Supp. 2d 1223, 1229 (D. Nev. 2010)
13. Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (internal quotation marks omitted) (citing Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1086 n. 7 (9th Cir.2002)).
14. Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (emphasis in the original)
15. See DelJack, Inc. v. U.S. Bank Nat. Ass’n, 1:11 -CV-00065-EJL, 2012 WL 4482049 at *11 (D. Idaho Sept. 26, 2012).
16. Kennedy, 952 F.2d at 267.
17. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) (sham affidavit rule didn’t apply to evidence from third parties); Van Asdale v. Int’l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009) (district court’s ruling striking the affidavit as a sham was improper because no factual finding was made); Pappas v. J.S.B. Holdings, Inc., 392 F. Supp. 2d 1095, 1103-04 (D. Ariz. 2005) (affidavits not a sham because they are not “sufficiently contradictory”); Messickv. Horizon Indus. Inc., 62 F3d 1227, 1231 (9th Cir. 1995) (affidavits are not sufficiently contradictory).
18. Major v. Sec. Equip. Corp., 155 Idaho 199, 307 P.3d 1225, 1231 (2013).
19. Tolmie Farms, Inc. v. J.R. Simplot Co., Inc., 124 Idaho 607, 609, 862 P.2d 299, 301 (1993).
20. Id. at 609 – 10, 862 P.2d, 301 – 02.
21. Id. at 610 – 11,862 R2d 299,302 – 03.
22. Matter of Estate of Keeven, 126 Idaho 290, 298, 882 P.2d 457, 465 (Ct. App. 1994).
23. Id. at 297 – 98, 882 P.2d 457,464 – 65.
24. Id.
25. 136 Idaho 100, 103-04, 29 P.3d 936, 939-40 (2001).
26. 143 Idaho 221, 225-26,141 P.3d 1090, 1094-95 (2006).
27. 153 Idaho 801, 805, 291 P.3d 1000, 1004 (2012), reh’g denied (June 7, 2012) (stating that “Idaho has not recognized the sham affidavit doctrine and because the affidavit was untimely, it was properly stricken and this Court need not address the issue here. The Court will not use this appeal as an opportunity to create a new doctrine when it is unnecessary to do so.”)
28. 155 Idaho 199, 307 R3d 1225, 1231 (2013).
29. Id.
30. Id. at 1232.
31. Id.
32. The Supreme Court has, as recently as June, 2014, held that Idaho has not adopted the sham affidavit doctrine. See Shea v. Kevic Corp., 40563, 2014 WL 2854710 (Idaho June 24, 2014). However, in Shea, the Supreme Court ruled that the affidavit at issue was vague and contradictory, and therefore subject to cross-examination. Id.

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