The Rejection of “Sham Affidavits”

Let’s say that you took the opposing party’s deposition and were able to obtain what you believe are very damaging admissions.  You then file a summary disposition motion under MCR 2.116(C)(10) based on those admissions.  When your opponent files a brief in opposition, she supports it with an affidavit from her client that contradicts the prior deposition testimony in an attempt to defeat your motion.  Michigan courts have resoundingly rejected that tactic under the “sham affidavit” doctrine.  Bailey v. Schaaf, 293 Mich App 611, 626 (2011), aff’d in part and rev’d on other grounds, 494 Mich 595 (2013), represents one of the latest pronouncements: “A witness is bound by his or her deposition testimony, and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for summary disposition.”  accord, Kaufman & Payton v. Nikkila, 200 Mich App 256-257 (1993).

The Sixth Circuit’s recent decision in France v. Lucas, 2016 US App LEXIS 16427 (September 7, 2016), considered the applicability of the sham affidavit doctrine in the context of a law enforcement sting.  A country sheriff’s office and the DEA conducted an investigation of drug trading in Mansfield, Ohio that relied on the use of confidential informants to make controlled drug buys from suspected drug traffickers.  The plaintiffs were convicted of selling crack cocaine, in a controlled drug buy orchestrated by the informant, and jailed.  However, the investigation fell apart when the informant disclosed that he had framed the plaintiffs and others by using stand-ins to stage drug transactions or by passing off his own drugs as having been purchased from investigation targets.

Having been unjustly convicted and incarcerated, the plaintiffs filed a § 1983 federal civil rights lawsuit against the informant and federal state law enforcement officials who were complicit in the scheme.  In response to the defendants’ summary judgment motion, the plaintiffs submitted an affidavit from the informant supporting the allegation that the law enforcement officials knew that the latter was framing targets of the drug trading investigation.  The problem was that the affidavit represented the informant’s third different version of his story about the drug investigation.  In his first story, he implicated some law enforcement officials, but not the defendants.  He told a second version when he testified in court at a criminal trial that no law enforcement officials worked with him to fabricate evidence.  Based on those discrepancies, the federal district court disregarded the affidavit under the sham affidavit doctrine and granted summary judgment for the defendants.

On appeal, the Sixth Circuit stated that on its face, the sham affidavit doctrine appeared to be applicable.  But it then noted that the “wrinkle here, however, is that we generally apply the sham affidavit doctrine against a party who attempts to avoid summary judgment by filing his own affidavit that directly contradicts his own prior testimony.”  (Emphasis in original.)  The plaintiffs argued that the Court should consider the affidavit because they made no contradictory statement to avoid summary judgment.  Rather, they submitted the affidavit from an opposing party and therefore the doctrine should not bar its use.  The Court framed the issue as having arisen in a “unique factual scenario: an affidavit from one defendant, which directly contracts his prior sworn testimony, submitted by the plaintiffs to defeat summary judgment motions from other defendants.”  (Emphasis in original.)

After considering precedents from other Circuits, the France Court rejected the plaintiffs’ arguments and affirmed the district court.  It cited Jiminez v. All American Rathskeller, Inc., 503 F3d 247 (3d Cir 2007), in which the plaintiff had submitted an affidavit from one of the defendants that implicated other defendants in violations of civil rights laws.  Because the affidavit contradicted the party’s prior deposition testimony, the district court struck it under the sham affidavit doctrine.  The Third Circuit affirmed, stating that 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.”

The Sixth Circuit noted the similarities with the facts in Jiminez, namely, that the informant had signed a contradictory affidavit implicating his codefendants, that the affidavit was submitted for the sole purpose of defeating his codefendants’ summary judgment motion and that the affiant’s interests were not aligned with his codefendants.  It further noted that the affiant had died shortly after submitting the affidavit, thereby denying the other defendants the opportunity to cross-examine him, the informant had been cross-examined during his prior testimony and had access to the pertinent information at that time.  The Sixth Circuit also relied on the plaintiffs’ failure to provide any explanation for the conflict between the informant’s affidavit and his prior testimony.  It therefore held that the district court did not abuse its discretion in disregarding the affidavit and affirmed the dismissal.

France provides the bench and bar with important guidance as to the contours of the sham affidavit doctrine.  The case indicates the willingness of the courts to apply the doctrine to any contradictory affidavit.