Chancery Rejects Sham Affidavit Argument

Graven v. Lucero, C.A. No. 8919-VCN (Del. Ch. Dec. 20, 2013).

Issue Addressed:  Whether the sham affidavit doctrine supported the grant of a summary judgment motion. Short Answer:  Not based on these facts.

Brief Overview:

This summary proceeding involved the control contest over a Delaware limited liability company.  The plaintiff moved for summary judgment based on certain factual admissions related to which particular version of the operating agreement was in effect.  One of the arguments was that a non-meritorious factual issue was raised in connection with an attachment to the answering brief in the form of a sham affidavit.  In footnote 21, the Court observed that the Delaware Supreme Court “declined to adopt or reject the doctrine, or to define its contours.”

The Court did describe the sham affidavit doctrine, however, as a situation in which “a witness at a deposition has previously responded to unambiguous questions with clear answers that negate the existence of a genuine issue of material fact, and as a result of such response the witness cannot thereafter create a fact issue by submitting an affidavit which contradicts the earlier deposition testimony, without an adequate explanation.”  Because of other conclusions in this case, Chancery did not need to either endorse or define the scope of the doctrine.

In sum, the Court concluded that the responses to discovery requests on which the motion for summary judgment relied, did not clearly admit facts that were later sought to be qualified, and therefore, the sham affidavit doctrine was not implicated in this case.