The “Sham Affidavit Doctrine” in an Unusual Context

Metro Marketing, LLC v. Nationwide Vehicle Assurance, Inc., ___ N.J. Super. ___ (App. Div. 2022). As discussed here, the “sham affidavit doctrine” holds that a party opposing summary judgment cannot claim that an affidavit that contradicts the affiant’s prior sworn evidence, such as deposition testimony, creates a genuine dispute of material fact unless there is a legitimate explanation for the affiant’s changed position. Shelcusky v. Garjulio, 172 N.J. 185 (2002), is the leading New Jersey case regarding the doctrine.

This opinion by Judge Sabatino addressed the applicability of the doctrine in an unusual context. The case involved plaintiffs’ claims that defendants had wrongfully “hired away key managers and more than forty members of their sales force, siphoned customers, and misappropriated alleged trade secrets.” That sort of case is not out of the ordinary. But this matter involved what Judge Sabatino called “a side-switching situation,” which he summarized as “(1) a codefendant is deposed, (2) that deponent thereafter obtains a job with the plaintiff, (3) the deponent then aids his new employer by signing certifications recanting his deposition testimony, and (4) the plaintiff offers those certifications in opposing summary judgment motions by the other defendants.” That contrasted with the published New Jersey sham affidavit cases to date, which “only applied the doctrine to an offending affidavit or certification made by the same party presenting it in opposition to summary judgment.”

The Law Division applied the sham affidavit doctrine, rejected the side-switching employee’s certifications, and entered summary judgment for defendants. The Appellate Division concluded that the Law Division was right to reject the certifications because such a flip-flop by a side-switcher was “inherently suspect” and was unexplained. Judge Sabatino cited cases from other jurisdictions in support of that result.

But the panel also found that the Law Division’s had erred in “rejecting as evidence a recorded telephone conversation of a different codefendant who was also rehired by one of plaintiffs’ companies after his deposition,” evidence that weighed against defendants’ summary judgment. Accordingly, the Appellate Division “vacate[d] summary judgment in all respects” and remanded the case to allow the Law Division to “reconsider its dismissal of the lawsuit in its entirety.”

Between Sheculsky and this case, pretty much anything that one might wish to know about the sham affidavit doctrine is present and well-explained. They are a valuable resource on this subject.