The Eastern District of Virginia weighed in on the split among federal district courts as to whether affidavits in support of or in opposition to motions for class certification must be based on personal knowledge. The affidavit in question began with the boilerplate predicate, “I have personal knowledge of the matters discussed below,” but the affiant admitted later in deposition that he did not. In fact, the affiant conceded that he simply signed a document prepared by an unknown lawyer for his employer and did not even read the attached exhibits about which he made substantive statements in the text of the affidavit.

Characterizing the affiant’s attitude as “cavalier”, the court rejected Equifax’s position that an affidavit in opposition to a motion to certify a class need not be based on personal knowledge. In doing so, the court analyzed the split among federal courts as to whether class certification affidavits must be based on personal knowledge. On the one hand, some courts have disagreed with the notion that such affidavits are held to a lesser standard and are not subject to the requirements of Federal Rule of Civil Procedure 56, governing motions for summary judgment. Other courts have found that because motions for class certification are not dispositive, the admissibility of such affidavits is less relevant.

The court followed the former approach, reasoning that the latter is at odds with the real world dispositive effect of a class certification decision. The court added that the significant role of class certification is a principal reason underlying decisions of the Supreme Court and the Fourth Circuit requiring the need for rigorous analysis in making the certification decision. Accordingly, it is important that the evidence used in making that decision be reliable. Under Rule 602 of the Federal Rules of Evidence, personal knowledge is the predicate of reliability.

The court further rejected Equifax’s argument that because the affiant had been previously deposed under Rule 30(b)(6), he became vested with corporate information as a matter of personal knowledge. The court first observed that the affiant did not even claim to be offering his affidavit on behalf of a corporation. Moreover, the substance of his affidavit was not his employer’s corporate records but instead those of a non-party, none of which the affiant had seen or studied.

Finally, the court concluded that the remedy of striking the affidavit was warranted under the circumstances. Apart from the fact that the affidavit lacked the hallmark of reliability, the Court refused to admit the affidavit simply because the affiant did not tell the truth.

Soutter v. Equifax Information Services, LLC, Case No. 3:10cv107 (E.D. Va. April 8, 2014).