The contents of a “sham” affidavit, by definition, cannot be used as evidence on a summary judgment motion because, as the Supreme Court observed in the 2002 case of Shelcusky v. Garjulio, it “would greatly diminish the utility of summary judgment.” The court there stated that a party who has testified on deposition cannot raise an issue of fact on summary judgment by submitting an affidavit (or certification; see R. 1:4-4b) contradicting his own prior testimony and thereby force the party seeking summary judgment to the burden of a trial.

The question then is what exactly constitutes a “sham” affidavit. This was the central issue in a May 12 published opinion in the case of Metro Marketing (and other plaintiffs which collectively the court referred to as “National”) v. Nationwide Vehicle Assurance (“Nationwide”). That case involved National’s claim of employee disloyalty; which revolves about statements by Christiansen and Kahlbom who were initially employees of plaintiff National; then, during the discovery time of the case, when their depositions were taken, were employees of defendant Nationwide, and who then subsequently returned to employment by National. This employment pirouette was categorized by the court as “side switching.” During their second employment with National, Christiansen swore in an affidavit to facts which directly contradicted his sworn deposition testimony and Kahlbom, in his second employment at National, in a recorded telephone conversation also contradicted his prior deposition testimony, given when they were employees of Nationwide.

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