Concept
Bad-Faith Affidavits
Adjudication without a trial
Bad-Faith Affidavits
Most flawed affidavits are merely flawed, and Rule 56 treats them that way. The rare affidavit filed in bad faith draws a separate response under Rule 56(h). If the court is satisfied that an affidavit or declaration submitted under the rule was made in bad faith or solely for delay, it may, after notice and a reasonable time to respond, order the submitting party to pay the other side's reasonable expenses, including attorney's fees, incurred as a result. The offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.1
The sanction makes sense once you see what the affidavit does on the motion. Summary judgment exists mainly to avoid useless trials and reach a final determination on the merits.2 An opposition affidavit is a promise of proof. A sworn statement based on personal knowledge shows that the witness could come to court at trial and give the same testimony, and so it shows the party has admissible evidence.3 The court acts on that promise at the motion stage, when it sees the paper and not the witness. A false affidavit corrupts the exchange by inventing a dispute and sending to trial a case the record would otherwise have resolved. An affidavit filed only to stall costs the movant time and legal fees for nothing. Fee-shifting puts those costs on the party who caused them.
Postponement as such is not the wrong. A judge may deny summary judgment and send the parties to trial because a fuller record may clarify the correct legal analysis, and the Supreme Court has approved withholding decision for that reason.4 The wrong is a party manufacturing that delay through a dishonest or purely tactical filing.
Each part of the rule serves that aim. The two triggers, bad faith and a purpose solely of delay, turn on why the affidavit was filed, not on how good it is. That focus protects honest litigants, because an affidavit can be weak, mistaken, or badly drafted without being dishonest, and a rule that punished every deficient affidavit would discourage the sworn evidence the motion depends on. The word solely narrows the delay trigger further: an affidavit offered to show a real dispute does not qualify just because it also slows the case. The notice-and-response requirement protects the same interest from the procedural side. Bad faith is a conclusion about a person's purpose, so the court should hear the submitting party's explanation before it reaches that conclusion. The remedy is also graded. Fees are tied to the expenses the filing caused, and contempt or other sanctions remain available for conduct serious enough to call for them.
A defective affidavit is a different problem, and the two are easy to confuse because the same paper can be defective without being dishonest. Rule 56(c)(4) requires an affidavit or declaration to be made on personal knowledge, to set out facts that would be admissible in evidence, and to show that the affiant is competent to testify on the matters stated.5 A paper that misses those requirements fails to show that its sponsor has admissible evidence on the point. That failure is one of proof. It calls for no finding about the affiant's purpose, and it supports no fee award unless bad faith or a sole purpose of delay is also shown.
Now change the defect into a lie.
The two scenes differ in the fact that matters. A lack of personal knowledge is a failure of proof under Rule 56(c)(4). A purpose to deceive or stall engages Rule 56(h), and only after the court is satisfied of that purpose following notice and a reasonable time to respond. When an exam presents a weak or poorly grounded affidavit, ask first whether the facts show bad faith or a sole purpose of delay. If they do not, treat the problem as one of evidence and award no fees.