Last month, in an opinion approved for publication, the New Jersey Appellate Division, in Metro Marketing, LLC, et al. v. Nationwide Vehicle Assurance, Inc., et al., addressed whether a party who switched sides mid-litigation entered a “sham affidavit,” a self-serving certification that directly contradicts prior representations in order to create an issue of fact, after the side-switching took place. In this non-compete litigation between rival telemarketing firms, the plaintiffs sued their former employees for misappropriation of trade secrets. Two scenarios arose in which the sham-affidavit doctrine was potentially implicated. The first was after a defendant who had been deposed returned to the plaintiffs’ employ and submitted a certification directly contradicting his prior deposition testimony. The second was after a co-defendant, who was also rehired by one of the plaintiffs’ companies after his deposition, contradicted his former testimony during a secretly recorded phone call. The trial court excluded both pieces of evidence and granted summary judgment to the defendants, dismissing all of the plaintiffs’ claims. On appeal, the Appellate Division ruled that the court below properly excluded contradictory testimony of the first defendant. On this issue of first impression, the court held that the sham-affidavit doctrine could apply in a side-switching scenario where: (1) a co-defendant is deposed; (2) that deponent thereafter obtains a job with...