Summary Judgment Practice: When The Deposition Clashes With The Affidavit



A summary judgment motion axiom posits that you can’t contradict prior sworn deposition testimony with a later affidavit in order to create a triable fact dispute. 

A crude example: if in a deposition you say “I didn’t suffer any monetary damages”, you can’t file an affidavit later in the lawsuit where you say “actually, come to think of it, I lost a million dollars” in order to defeat a summary judgment motion.  You’ll be bound to your earlier deposition testimony. 

Otherwise, anyone could contradict his earlier sworn testimony with impunity and undermine summary judgment’s entire evidence testing system.

Kuvedina, LLC v. Pai, 2013 WL 6499696 (N.D.Ill. 2013) examines summary judgment in the context of a conversion suit.

Facts:  Plaintiff management company hired defendant to provide consulting services to one of plaintiff’s clients.  The relationship between plaintiff and defendant soured and plaintiff fired defendant.  When defendant failed to return a company laptop, plaintiff sued in Federal court for conversion, asserting that defendant’s actions caused plaintiff to lose a large corporate client. 

Defendant moved for summary judgment and attached plaintiff’s owner’s deposition testimony as a supporting exhibit.  In the deposition, the owner gave vague, non-responsive answers and couldn’t pinpoint any evidence to support plaintiff’s money damages claim.

Result: Summary judgment entered for defendant on plaintiff’s conversion count. 


Conversion is the wrongful possession of another’s property or any act that permanently or indefinitely deprives someone of the use and possession of his property.

To prove civil conversion in Illinois, a plaintiff must establish (1) a right to the property; (2) an absolute and unconditional right to the immediate possession of the property; (3) a demand for possession of the property; and (4) defendant’s wrongful and unauthorized assumed control, dominion or ownership over the property. *4. 

Money can be converted – but it must be a specific, identifiable fund (e.g. the $876 contained in defendant’s checking account at XYZ bank).  It can’t be a general obligation (“you didn’t paint my house like you promised, so you stole that $500 I gave you.)

Siding with defendant on the conversion count, the Court applied Illinois conversion case law which holds that voluntarily paid funds won’t support a conversion claim. 

The Court found that since plaintiff freely paid defendant almost $40,000 without protest,  plaintiff couldn’t show conversion as to those funds. *4.

The court did side with the plaintiff on its breach of contract, tortious interference, and fraud claims. In its summary judgment motion, defendant pointed to a factual clash between plaintiff’s owner’s earlier deposition and later affidavit testimony.

In his deposition, the plaintiff’s owner couldn’t substantiate any money damages when asked.  Yet, in his later affidavit – filed in response to defendant’s summary judgment motion – he calculated damages of over $500,000 based on defendant’s conduct.

In sustaining plaintiff’s claims, the court stated that all summary judgment evidence – be it interrogatories, depositions, or affidavits – is to some extent self-serving.  The question is a matter of degree.  

Here, the Court found that while plaintiff’s affidavit was self-serving, there were still too many factual disputes in connection with plaintiff’s contract, tortious interference and fraud claims that couldn’t be resolved on a summary judgment motion.   *5.

Take-away: Kuvedina presents a good discussion of how differing deposition versus affidavit testimony impacts the court’s summary judgment calculus and that voluntary payments by a plaintiff are unlikely to support a conversion claim.  

The case also clarifies that summary judgment movant must argue and show more than that the opponent’s evidence is self-serving to win the motion.  The moving party must show that the self-serving evidence fails to raise a genuine issue of disputed material fact. 





Harvester of Sorrow? (IL Fed. Court Tackles Computer Fraud Case

tape recorder (photo credit: Google Images:

Fidlar Technologies v. LPS Real Estate Data Solutions, Inc., 2013 WL 5973938 (C.D.Ill. 2013), a high-tech diversity suit, examines internet data “harvesting” and whether it gives rise to Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (CFAA) and common law tort liability. 

The plaintiff developed a computer program that allowed recorder of deeds’ offices from around the country to provide users with public access to real estate records for a fee.  The defendant software company developed a data harvester program that bypassed plaintiff’s protective controls and then captured the real estate data without paying fees.

When plaintiff found out, it brought CFAA claims and state law trespass to chattels claims against the defendant.  Defendant moved to dismiss plaintiff’s claims.

Held: Defendant’s motion to dismiss denied.


The CFAA provides a civil cause of action to a plaintiff injured by computer fraud or hacking.  A CFAA “transmission claim” prohibits a defendant from knowingly transmitting a program (such as a data harvester) without authorization that causes damage to a protected computer.  A CFAA plaintiff must show loss of at least $5,000 in any one-year period.  18 U.S.C. §§ 1030(a), (c).

The Court found that plaintiff sufficiently pled damage, loss and intent under Federal notice pleading rules.  Plaintiff’s claim that defendant’s harvesting activity compromised plaintiff’s software satisfied the CFAA’s damage definition – since it alleged an impact to the “integrity” of the software.  18 U.S.C. 1030(e)(8)(CFAA damage definition). 

Plaintiffs also adequately pled loss of at least $5,000 under the CFAA: plaintiff claimed it spent over $80,000 investigating the extent of defendant’s invasion of plaintiff’s software and in making software repairs and adjustments to prevent further service interruptions.  ¶¶ 7-8; 18 U.S.C. 1030(e)(11)(loss definition).  

Lastly, the Court found the plaintiff’s intentional conduct allegations – that defendant’s intentionally and without permission, used plaintiff’s software – were sufficient under FRCP 8’s “short plain statement” strictures.  ¶ 6.

The Court also sustained (in part) the plaintiff’s trespass to chattel claims.  Trespass to chattel – a sparingly used tort occasionally applied to cyberspace lawsuits – provides a remedy where a defendant intentionally interferes with the plaintiff’s personal property and causes harm to it.  ¶ 9. 

The plaintiff’s trespass to chattel claim based on its computer data wasn’t actionable since electronic public data isn’t physical or private property owned by the plaintiff.  

But plaintiff did make out a trespass to chattels claim with respect to its computer servers.  The servers were sufficiently tangible (or physical) to underlie a trespass to chattels claim.  Plaintiff’s claim that defendant accessed the servers and impaired the servers’ quality, condition and value adequately met the Federal notice pleading standard. ¶¶ 10-11.

Defendant’s Counterclaim

Defendant’s injunctive relief and tortious interference claims were rejected.  The court found that plaintiff’s conduct was privileged under the “honest advice” privilege and the First Amendment Petition Clause.  

The latter privilege applied since the counties with whom plaintiff dealt were all government agencies.  Plaintiff’s statements to the counties concerning the defendant’s unauthorized data mining were protected “petitions” to those counties: plaintiff asked the counties to cut off defendant’s access to plaintiff’s software.  ¶¶ 14-17.


– Computer Fraud plaintiffs can satisfy notice pleading standards by alleging plausible facts of intent, damage and loss exceeding $5,000;

– Trespass to chattels tort applies to physical computer hardware and servers but not to computer data;

A business competitor has some latitude to make disparaging statements about a competitor where the statements are substantially true, opinions and not facts or are privileged.