Even famed test pilot Chuck Yeager can't avoid the sham affidavit rule. Last month the Ninth Circuit affirmed a district court judge's decision to disregard a declaration that Yeager submitted in opposition to a summary judgment motion, on the ground that it contradicted his earlier deposition testimony.
In Yeager v. Bowlin, Yeager filed suit in the Eastern District of California against sellers of aviation-related memorabilia, claiming, among other things, violations of the Lanham Act and California's common law right to privacy. Yeager -- who gained fame when he was featured in the book and movie The Right Stuff -- was deposed in connection with the lawsuit and reportedly remembered "almost nothing" about events central to the case. He was unable to recall answers to approximately 185 questions. Yet in response to defendants' summary judgment motion, he submitted a declaration in which he recalled the same events "with perfect clarity."
The sham affidavit rule provides that a party cannot create an issue of fact and avoid summary judgment by offering an affidavit contradicting his prior deposition testimony. Yeager argued that the declaration was not a sham because it did not contradict his deposition testimony, but merely showed that he had later "refreshed his recollection" by reviewing documents.
The Ninth Circuit held that a declaration may be rejected as sham when it contains facts that the declarant previously testifed he could not remember. While courts should not make credibility determinations when granting or denying summary judgment, in this case the disparity between the declaration and the deposition was "so extreme" that no juror would believe the explanation provided for the later recovery of memory.