Evidence: Sham Affidavit Doctrine

Perdue v. La Rue, No. 1 CA-CV 19-0657 (App. Div. I, September 3, 2020) (J. Howe) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CV%2019-0657%20Perdue%20v.%20La%20Rue.pdf

SHAM AFFIDAVIT DOCTRINE REQUIRES COURT TO DISREGARD AFFIDAVIT FILED IN CONTRADICTION TO DEPOSITION TESTIMONY IN DIFFERENT LEGAL PROCEEDING WHEN DECIDING MOTION FOR SUMMARY JUDGMENT

In this real estate dispute the trial court granted summary judgment against appellant finding that appellant's affidavit was in direct contradiction to her deposition testimony given in an earlier divorce proceeding and therefore to be disregarded. The Arizona Court of Appeals affirms.

The sham affidavit doctrine holds that a party cannot defeat a motion for summary judgement by submitting an affidavit that contradicts prior sworn testimony.  The doctrine only applies when there is clear contradiction. It does not apply if the “affiant was confused at the deposition and the affidavit helps explain the confusion, or if the affiant lacked access to material facts and the affidavit sets forth the newly discovered evidence.”

There is no reason to limit the doctrine to sworn testimony in the same litigation where summary judgment is sought. An affidavit that is directly contradicted by the affiant's sworn testimony in any other action must be disregarded by the court in considering a motion for summary judgment.