Summary Judgment, Depositions, and The Sham Affidavit Rule

Intricacies Of Arizona Court Proceedings: The Sham Affidavit Rule

Summary judgment is also referred to as a “judgment as a matter of law.” This occurs where a judge determines to enter judgment summarily where there is no genuine issue of fact, or in other words, no genuine dispute as to the facts underlying a legal claim. For example, if Abigail alleges that Bob trespassed onto her property and destroyed her prized rose bush, and all of the undisputed evidence on record shows that Bob did in fact trespass onto Abigail’s property and destroy her prized rose bush, the court may grant Abigail summary judgment, foregoing what would be a needlessly expensive and time-consuming trial.

Professional Litigation Attorney In Mesa, AZ

In many cases, the party objecting to summary judgment may provide the court with an affidavit, a sworn statement from a witness, in an effort to create an issue of fact which would defeat summary judgment (remember, summary judgment is appropriate only where no genuine issue of fact exists) (see Ariz. R. Civ. P. 56(c)(5)). If we take our example above with Abigail and Bob, Bob could provide the court with an affidavit from himself where he states that he did not go onto Abigail’s property and destroy the prized rose bush. This would create a genuine issue of fact as to whether Bob had trespassed and damaged the rose bush, leaving the court no choice but to deny Abigail’s request for summary judgment and letting the case proceed to trial.

But let’s throw in one more twist. Let’s assume Abigail had a good attorney, and that attorney had decided to take Bob’s deposition before filing Abigail’s motion for summary judgment. During that deposition, Bob admitted that he lost control of his car and ran over Abigail’s prized rose bush. So now we have two conflicting statements from Bob: during his deposition, Bob admitted to running over Abigail’s rose bush; later, Bob signed an affidavit stating he was not the one who destroyed the rose bush. Given this scenario, what happens to Abigail’s motion for summary judgment? After all, don’t we have an issue of fact here with the two different stories from Bob (not to mention Bob’s credibility as a witness)?

What Is the Sham Affidavit Rule?

It’s precisely in situations like these that Arizona’s “sham affidavit” rule comes into play. Under Arizona law, “a party’s affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.” Wright v. Hills, 161 Ariz. 583, 780 P.2d 416 (App. 1989) (abrogated on other grounds). The court in Wright explained that the sham affidavit rule was necessary to prevent self-interested parties from “greatly diminish[ing] the utility” of Rule 56 summary judgment, which helps promote judicial efficiency by “screening out genuine issues of fact.” Id. at 587-88, 420-21.

The rule does not have a one-size-fits all application, however. The Wright court explained that if reasonable explanations existed as to the discrepancies between deposition testimony and an affidavit (for example, confusion during the deposition, or subsequent access to material facts which were unavailable or unknown at the time of the deposition), the affidavit might still be considered. Id. at 588, 421. Furthermore, if the deposition testimony and affidavit do “not clearly conflict,” the sham affidavit rule will not apply to bar the affidavit. MacLean v. State Dept. of Educ., 195 Ariz. 235, 986 P.2d 903 (App. 1999).

More recently, the Arizona Court of Appeals has suggested that the sham affidavit rule could possibly be extended to a “nonparty affiant [who] has some motive, emotional or financial, to fabricate sham issues of fact.” Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 153 P.3d 1069 (App. 2007). Examples might include family members of the party opposing summary judgment, or financially interested expert witnesses of the opposing party.

Let’s circle back to Abigail and Bob. Applying the sham affidavit rule, it becomes clear that Bob’s affidavit where he states that he wasn’t the one who destroyed Abigail’s prized rose bush is going to be excluded, and summary judgment will probably be granted. Bob’s affidavit is (1) an affidavit from the non-moving party (Bob is the defendant, and is the one opposing summary judgment), and (2) clearly contradicts his deposition testimony (remember, Bob had previously admitted to losing control of his car and crushing the rose bush). Theoretically, circumstances might exist which might justify the discrepancy between these two statements, but it’s difficult to imagine what might reasonably explain such a drastic one eighty from a clear admission to an outright denial.

The sham affidavit rule is one reason why it can be a great idea to get a party’s testimony on the record through deposition relatively early. By doing so, a party can be in a strong position to move for summary judgment if the circumstances of their case warrant it, and having the opposing party’s deposition testimony on the record removes that uncertainty as to what might be raised in objection to summary judgment.

Contact Experienced Litigation Attorneys In Arizona

The sham affidavit rule is also another great example of the intricacies of court proceedings, and showcases why it is always a great idea in litigation to be represented by experienced and skilled counsel. The Scottsdale litigation attorneys at Denton Peterson Dunn, PLLC have been assisting clients in the Greater Phoenix Metro area successfully navigate all kinds of litigation matters for over two decades. If you’re involved in litigation or need advice about potential litigation, call today to see how Denton Peterson Dunn can get you the answers and results you need.



Brad Denton, Business Lawyer
Denton Peterson Dunn

Mesa Location

1930 N Arboleda #200
Mesa, AZ 85213

Office: 480-325-9900
Email: [email protected]

Scottsdale Location

7272 E Indian School Rd #540-132
Scottsdale, AZ 85251

Phone: 480-325-9919
Email: [email protected]