Does a pre-litigation, unsworn statement constitute “testimony” sufficient to invoke the sham affidavit rule when a party subsequently testifies in an inconsistent manner? Instead of addressing this important question, both the majority and dissent in Wilson v. Gaston County, No. 15-2522 (4th Cir. April 13, 2017) (unpublished), assume that prior written statements of the plaintiff can be considered “testimony” for purposes of invoking the sham affidavit rule. By failing to make this initial inquiry, the court used the sham affidavit rule to sweep away a party’s deposition testimony in favor of two written statements that were not given under oath.
The 4th Circuit first invoked the sham affidavit rule when it stated “[a] genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the [party’s] testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (emphasis added). The use of the word “testimony” is not by accident and has a specific meaning: “evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary 1485 (7th ed. 1999). In fact, the 4th Circuit has specifically stated that statements not given under oath and not subject to cross-examination are not equivalent to deposition testimony, and as such, that applying the sham affidavit rule in such contexts is inappropriate. Shockley v. City of Newport News, 997 F.2d 18 (4th Cir. 1993); see also Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999). Heeding these principles, virtually all courts have required both versions of the facts to take the form of “testimony,” such as depositions versus affidavits, contradictions within sworn statements, testimony versus sworn EEOC charge, and affidavit versus verified document. But see McDevitt & St. Co. v. Seaboard Sur. Co., 1995 U.S. App. LEXIS 15076 (4th Cir. June 19, 1995) (misquoting Barwick while invoking sham affidavit rule when an affidavit directly contradicted the language in letters between the parties); Williams v. Genex Servs., LLC, 809 F.3d 103 (4th Cir. 2015) (sham affidavit rule invoked when plaintiff’s testimony conflicted with her resume).
In Wilson, a coworker began sexually harassing Abigail Wilson in Nov. 2011. Wilson testified that she reported the harassment to two supervisors shortly after the harassment began and continued to report the harassment to the supervisors until Jan. 2012. In March 2012, Wilson finally reported the harassment to Gaston County’s Human Resources Department. During the HR investigation, she provided two written statements regarding the harassment. In those statements, Wilson did not expressly state she previously reported the harassment to the supervisors and made general statements and reasons for why she did not immediately report the harassment.
The majority found that Wilson’s deposition testimony that she reported the sexual harassment to two supervisors contradicted the two written statements. Based on this contradiction, the majority invoked the sham affidavit rule to strike her deposition testimony and award summary judgement to Gaston County.
While invoking the sham affidavit rule when a party contradicts pre-litigation, unsworn statements may be appropriate—especially in cases like McDevitt where the party flatly contradicts key prior statements—courts should first examine if applying the sham affidavit rule is appropriate. In considering whether to apply the sham affidavit rule, courts should consider:
- Importance of the Statement: Is the statement one that forms the basis for the lawsuit or is it ancillary to the case? In McDevitt, the sham affidavit attempted to disclaim the use of “requirement” in communications regarding a performance bond and assert that the request was merely a “preference.” McDevitt & St. Co., 1995 U.S. App. LEXIS 15076, at *18. Applying the sham affidavit rule in this circumstance appears to be appropriate because a party is attempting to blatantly contradict the record. See Scott v. Harris, 550 U.S. 372, 380 (2007). In Wilson, however, the statements were post-incident recitations and did not form the basis of the lawsuit—the issue was if Gaston County had notice of the harassment, not whether Wilson had been completely honest during the HR investigation. There is less urgency to apply the sham affidavit rule in such circumstances.
- Circumstances of the Statement: How did the party provide the statement? Was it a flippant remark, a series of communications during a complex business deal, or an employee providing a statement during an HR investigation where the employee may or may not have been warned of the seriousness of the statements? If the statement is given in circumstances that indicate the party is well aware of the consequences of the statement and the statement is given with intent to bind the party, then applying the sham affidavit rule may be appropriate. See Williams v. Nish, 2015 U.S. Dist. LEXIS 1159 (discussing when an unsworn declaration becomes equivalent to an affidavit under 28 U.S.C. § 1746 for purposes of the sham affidavit rule).
- Sophistication of Party: Unsophisticated parties, such as employees reporting, or defending against claims of, harassment, may not understand that omissions or failure to fully explain may, several years later, derail their case. Further, unsophisticated parties are often unrepresented prior to litigation. These factors combine to lead unsophisticated parties to “misstate themselves, . . . not properly understand the question propounded, or give equivocal answers.” Webster v. Sill, 675 P.2d 1170, 1173 (Utah 1983). The more sophisticated the party, and the more access to legal counsel the party had, the more appropriate the application of the sham affidavit rule.
- Opportunity to Cross Examine: As courts have made clear, one purpose of the sham affidavit rule is to prevent a party from avoiding the scrutiny of cross-examination in a deposition and then spring a lawyer-drafted affidavit to avoid a grant of summary judgment. See Russell v. Acme-Evans Co., 51 F.3d 64 (7th Cir. 1995). For statements made prior to litigation, the court should examine if the opposing party had a full opportunity to depose the party and explore the alleged inconsistencies.
- Actual Inconsistency: The 4th Circuit has stated that “there must be a bona fide inconsistency” between the evidence for the sham affidavit rule to apply. Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001). Prior to applying the sham affidavit rule to unsworn statements, a court should carefully assess if there is a bona fide inconsistency rather than minor differences or misstatements. As the dissent in Wilson pointed out, Wilson’s written statements were not conclusively inconsistent with her testimony: much of the alleged inconsistency was one of omission rather than admission.
- Reasonable Explanation: Some jurisdictions allow a party to provide a reasonable explanation for why an affidavit contradicts prior deposition testimony before applying the sham affidavit rule. See, e.g., Russell, 51 F.3d at 68. Courts should provide a party this same opportunity prior to applying the sham affidavit rule to pre-litigation, unsworn statements.
- Other Remedies: Summary judgment is a drastic remedy. Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1004 (4th Cir. 1987). Prior to using the sham affidavit rule to support the grant of summary judgment, courts should consider if other remedies are appropriate. For instance, Rule 613 of the Federal Rules of Civil Procedure already authorizes parties to attack prior inconsistent statements of witnesses and parties, and courts can craft orders that give more effect to Rule 613 questioning.
While I didn’t do an exhaustive search, I found only five cases by the 4th Circuit or its district courts applying the sham affidavit rule to pre-litigation, unsworn statements. Five cases versus the 526 times the two leading 4th Circuit cases (Barwick and Rohrbough) have been cited in sham affidavit cases. Before courts expand the use of the sham affidavit rule to unsworn, pre-litigation statements, they should carefully consider the reason, necessity, and value of such an expansion. As the 11th Circuit has recognized:
To allow every failure of memory or variation in a witness’s testimony to be disregarded as a sham would require far too much from lay witnesses and would deprive the trier of fact of the traditional opportunity to determine which point in time and with which words the witness . . . was stating the truth.
Tippens v. Celotex Corp., 805 F.2d 949, 953–54 (11th Cir. 1986).
 Sometimes called the “sham issue of fact” doctrine.
 See, e.g., Barwick, 736 F.2d 946; Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970 (4th Cir. 1990); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997); Stevenson v. City of Seat Pleasant, 743 F.3d 411 (4th Cir. 2014).
 See, e.g., Waste Mgmt. Holdings v. Gilmore, 252 F.3d 316 (4th Cir. 2001).
 See, e.g., Mistler v. Worthington Armstrong Venture, 2017 U.S. Dist. LEXIS 16690 (D. Md. Feb. 3, 2017).
 See, e.g., Williams v. Nish, 2015 U.S. Dist. LEXIS 1159 (M.D. Pa. Jan. 7, 2015).
 As well as address the Shockley court’s (dicta) position that the sham affidavit rule is not appropriate for pre-litigation, unsworn statements.