What is a sham declaration or affidavit and how do you beat one?
- Peter Schneider
- Jan 7
- 5 min read
Updated: Feb 4
This post is to help folks understand what a sham declaration or affidavit is, and how do you beat one in court.
In a nutshell, a sham declaration or affidavit is new testimony (usually in the form of a declaration or affidavit) that contradicts previously testimony (usually deposition testimony) without a reason that satisfies.
These often appear when a party tries to defeat a motion for summary judgment by suddenly trying to create a fact issue with new testimony that contradicts their earlier testimony. I'll use a recent case Barton v. Delfgauw, 3:21-cv-05610-DGE (W.D. Wash.) to show you one in the wild.
In this lawsuit the plaintiff, Nathen Barton, moved for summery judgment on his Telephone Consumer Protection Act and Washington State's Consumer Electronic Mail Act (CEMA) claims against the telemarketing defendants.
Of course one of Mr. Barton's elements under 47 U.S. Code § 227(c) is lack of consent and these defendants had previously conceded they had initiated their phone calls without Mr. Barton's.
In the defendants' response they flailed around trying to create a fact issue, and they thoughts up a new way to explain a document in the case that they had previous testified about.
In my understanding of their Response (as I said they flailed around a bunch so it isn't clear exactly what they were testifying) that the 4/1 event was a consent to received text messages from this IP address, and they swore that the 4/9 event was someone at the same IP address clicking on the link in one of the text messages.
The defendants tried to stave off summary judgment by arguing this new testimony proved the person who consented to the text messages was the person who had the phone and was clicking on links in the text messages they sent.
In Barton's Reply
He pointed out that the defendants had previously testified under oath in a 30(b)(6) deposition that the 4/9 event was a consent for calls, not a link click:
Q But you can't testify for sure that each of these one, two, three, four, five, six, you can't testify that each of these six rows represent an opt-in?
A I can only go with what the data shows me and the data is there six times. I mean I suppose I can find out, but it looks like the April 1st, the April 9th were the opt-ins. The 13th and the 30th I'm not a hundred percent sure.
Q So the six of these rows are or are not opt-ins.
A I don't know. It could be. We've had times before where people have sent the text message and it showed up because it went into the system and that's why there was no IP because they were sending a message, so that has happened as well. I know that the first two are opt-ins. I don't know about the other four, but I can find out.
Q When you say the first two, you mean the April 1 and the April 9?
A Yep.
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Q So I am opening Exhibit XA1 and I'm looking for Admission 102. Admit or deny that opt-ins that you alleged caused you injury by Barton are all from 71.238.123.34. Is that correct that all the opt-ins that you claim caused you injury from me are from this IP address?
A I am claiming that the first two opt-ins from April 1st and April 9th are from that IP address, yes.
We have previously testimony that says A, we have new, conflicting testimony that says B. What does the law say?
Although an entity defendant may not defeat a motion for summary judgment by submitting an affidavit that conflicts with its Rule 30(b)(6) deposition, that general rule "applies only where the purportedly conflicting evidence truly, and without good reason or explanation, is in conflict, i.e., where it cannot be deemed as clarifying or simply providing full context for the Rule 30(b)(6) deposition." Okafor v. Cal. Dep't of Conservation, No. 18-55238, 2 (9th Cir. Aug. 15, 2019)
What is the big take away here? Depose your opponents and nail down important facts from multiple directions. Had this plaintiff not done that in his telemarketing case that is all about consent, they might well have successfully changed their story and defeated summary judgment in this case.
In this case the sham nature of the defendants' declaration is readily apparent but in less so situations or just to help make a tidy argument, here is a nice opinion (but out of the ninth circuit where I practice) that is very educational on the topic. Peterkin v. Bummz Beach, LLC, No. 2024-UP-144, 2 (S.C. Ct. App. May. 1, 2024). I am not sure if ninth circuit courts look at these exact factors when analyzing a sham declaration but the thought process of the elements is solid:
(1) whether an explanation is offered for the statements that contradict prior sworn statements;
(2) the importance to the litigation of the fact about which there is a contradiction;
(3) whether the nonmovant had access to this fact prior to the previous sworn testimony;
(4) the frequency and degree of variation between statements in the previous sworn testimony and statements made in the later affidavit concerning this fact;
(5) whether the previous sworn testimony indicates the witness was confused at the time;
(6) when, in relation to summary judgment, the second affidavit is submitted
Should the defendants in the Barton case argue it in a surreply, he could spank them with the Peterkin factors: the defendants hit every single one of them. No explanation, critical to the litigation, the defendants always had access to the information they now just testify to, no indication the witness was confused during the deposition, and the new testimony is offered at the last possible moment.
And here is an example of a defendant trying to strike a declaration as a sham, and it didn't work.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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