Section 10.19 1. Inconsistent Affidavits

JurisdictionNew York

1. Inconsistent Affidavits

The same problem obtains in federal practice as it does in state practice when parties are disappointed by the adverse use of a deposition previously taken in the case and feel the need to respond by submitting an affidavit from the deponent that endeavors to challenge the previous deposition. To what extent may history be rewritten in this way? In other words, can the party opposing a motion for summary judgment attempt to create a material issue of fact by “correcting” the deposition through the submission of a contradictory affidavit from the deponent?

Once a deposition transcript has been corrected or the opportunity to do so foregone, the transcript becomes final. In general, a party may not repair damage at the deposition through submission of an affidavit that contradicts his or her earlier testimony. When such a conflict arises, the deposition testimony will prevail over the affidavit.1418 The reason for such a resolution is that

[a]ffidavits are normally . . . written by lawyers, and if such documents were allowed to be used to “correct” unguarded statements that had been made in the more spontaneous setting of oral questioning, the value of pretrial discovery as a tool for eliciting truth and heading off trials based on fabrications would be seriously impaired. . . . Recollecting in tranquility the admissions blurted out under the pressure of a hostile interrogation, the witness and his lawyer can easily cobble together a plausible denial. 1419

Such easy denials cannot be allowed to eliminate the benefits that flow to litigants and the system of justice from the existence of a sound summary judgment procedure.1420

Notwithstanding the foregoing, some limits need to be carefully noted here. The deposition and the affidavit must actually contradict each other for the affidavit to be inadmissible; corrections that supplement and explain the previous testimony are allowed.1421 In Aerel, S.R.L. v. PCC Airfoils, L.L.C.,1422 the district court, based on the general rule, had stricken two paragraphs from an affidavit submitted on a summary judgment motion. The Sixth Circuit, however, disagreed with that action, noting that the two paragraphs did not directly contradict the deposition testimony but rather revealed information that had not been fully explored during the deposition. “Such an affidavit fills a gap left open by the moving party and thus provides the district court with more information, rather than less, at the crucial summary judgment stage. . . . [T]he deponent is under no obligation [during a deposition] to volunteer information not fairly sought by the questioner.”1423

The court may accept an affidavit if its purpose is to clarify ambiguous portions of a deposition.1424 Also, if the party can offer a suitable explanation for why the affidavit contradicts the deposition, the court may accept the affidavit.1425 The court may accept an affidavit when the witness adequately explains that he or she was confused when giving the deposition testimony.1426 Mistakes or a lapse in memory, if adequately explained, might suffice,1427 as might newly discovered evidence.1428

In evaluating whether an affidavit creates a sham or feigned issue, some courts inquire as to whether (1) the affiant was cross-examined during the deposition, (2) the affiant had access to the relevant evidence at the time of the deposition or (3) the deposition reflects confusion that the affiant seeks to explain.1429 If the affiant was asked about certain documents during the deposition to which he or she did not have access when responding and, during a review of the transcript, discovered and amended erroneous statements with regard thereto, a court might find the affidavit acceptable if this explanation is set forth in a candid and detailed way.1430 (This example suggests the importance of advising witnesses not to give answers when they do not actually recall the facts.1431)

In Aerel, S.R.L. v. PCC Airfoils, L.L.C.,1432 the court wrote that the first step in evaluating the admissibility of a post-deposition affidavit on summary judgment is to determine whether the affidavit...

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