Judge Davis Sanctions Plaintiff for Submitting Bad Faith Affidavit and Errata Sheet

For the second time, sanctions have been ordered against the plaintiff in Tam v. Federal Management Co., Inc., et al.

In 2016, we blogged about Judge Leibensperger’s sanction to disqualify Siew-Mey Tam as a class representative after finding that she made materially false and misleading statements in her affidavit to the court in support of her motion for class certification. These false statements came to light during post-certification discovery, when Tam’s deposition testimony revealed inconsistencies with her affidavit and cast substantial doubt on her credibility. Judge Leibensperger also decertified the class, in part, because of Tam’s inconsistent representations.

Now, in a recent decision by Judge Davis, Tam has been sanctioned again and ordered to pay $75,000 in attorneys’ fees for subsequent conduct related to her submission of a second affidavit and a 32-page errata sheet that substantially altered her deposition testimony. 

In response to the defendant’s motion for summary judgment after decertification, Tam submitted a second affidavit in which she “doubled-down” on the statements made in her first affidavit despite the fact she had testified at her deposition that some of those same statements were “wrong” and “incorrect.” Trying to reconcile the material inconsistencies between her first and second affidavit on the one hand, and her sworn deposition testimony on the other, Tam offered an errata sheet in which she dramatically revised her deposition testimony. Tam claimed that she gave contradictory answers in her deposition because she was “confused,” “terrified,” and “scared” by the defendant’s attorney, causing her to agree to whatever he said. The court ultimately granted the motion for summary judgment and refused to consider the errata sheet.

The defendant then moved for sanctions against Tam pursuant to Mass. R. Civ. P. 56(g) and the inherent powers of the court for filing an alleged untruthful second affidavit. The defendant also moved for sanctions against Tam’s counsel for allegedly abusing Mass. R. Civ. P. 30(e) by preparing and submitting Tam’s errata sheet.

Judge Davis sanctioned Tam, finding that “an award of attorney’s fee under Rule 56(g) is appropriate because of the serious and repeated nature of Tam’s violation, which the Court regards as highly indicative of ‘bad faith.’” Judge Davis, however, declined to sanction Tam’s attorney, finding that because Tam insisted that all of the information contained in her first and second affidavit was accurate and that the errata changes were directed by her, any inaccuracies in those materials were solely the responsibility of Tam, not Tam’s counsel.

The Business Litigation Session of the Massachusetts Superior Court

Docket Number: 1384CV02347-BLS1

Case Name: Tam v. Federal Management Co., Inc., et al.

Date of Decision: January 31, 2020

Judge’s full name: Brian A. Davis

Justice: Justice Davis

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