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August 13, 2009

Litigation: The Miracle, Salvation, and Holy Surprise of Rule 56(f), Fed. R. Civ. P.

(f) When Affidavits Are Unavailable.

If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) deny the motion;

(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or

(3) issue any other just order.

Another WAC? Sensitive Litigation Moment. Trial lawyers know that Rule 56 of the Federal Rules of Civil Procedure, or summary judgment, gives a litigant an opportunity to win on its claims or dispose of the opponent's claims relatively quickly and without trial. Accompanied by sworn affidavits, and most often discovery responses, a Rule 56 motion tries to show that there is no real dispute about key facts and that the movant is entitled to judgment under the law.

If the trial court grants it, the movant wins on those claims.


Disruptive as Hell: The "early-in-case" Rule 56 motion (note well-dressed Brit GC after taking a bullet here).

But what if a summary judgment motion is brought against your client--suddenly and out of the blue--and the local rules (or local folkways and practices) of the district court don't give you much time to develop and prepare an opposition. After all, Rule 56 lets a party who has brought a claim file for summary judgment after 20 days, and defendants can file "at any time".

In contentious, high stakes litigation, a quick summary judgment motion right after the commencement of a lawsuit can be extraordinarily disruptive--no matter how it is resolved by the district court. It will fluster even the most battle-hardened-been-there-seen-that GC or in-house counsel.

And it's an expensive little sideshow, too.

Subdivision (f) of Rule 56, "When Affidavits are Unavailable", provides a safeguard against premature grants of SJ. Lots of good lawyers seem either to not know about--or to not use--subdivision (f) of Rule 56.

In short, you file your own motion and affidavit--there are weighty sanctions if you misuse the rule, so be careful--stating affidavits by persons with knowledge needed to oppose the motion are "not available", and stating why.

The district court can then (1) deny the request and make you oppose the motion, (2) refuse to grant the motion for SJ OR do what you really want it to do: (3) grant a continuance so that you can "obtain" affidavits and, better yet, take depositions or conduct other discovery.

Granted, it's a delay-oriented rule, but if used correctly, Rule 56(f) can give you the breathing room and time you need to develop the client's case, and avoid the granting of summary judgment against it.

Note: Some months ago our friend John Day--a Tennessee trial lawyer recently honored by his peers, and a man who thinks it's a privilege to practice law--responded to an earlier and similar post we published, and he made this comment, which we wish we'd written:

Another tactic is promptly serving notices to take appropriate depositions before the Rule 56 response deadline (if you already have enough information to take a good deposition in the case). The opponent almost always objects to the timing of the deposition--and thus you can put the unavailability of a witness and/or counsel in your affidavit while at the same time illustrating your commitment to move the case forward.

A judge may well decline to give more time to gather evidence if no effort has been made to conduct discovery while the case has been pending. This is yet another reason to have a discovery plan in place very early in the litigation (and if you're the plaintiff before suit is filed) and promptly serve written discovery/take depositions/do discovery under Rule 45 [non-party] in a sequence appropriate for that case.

Posted by JD Hull at August 13, 2009 11:20 PM


Very thorough explanation of that rule. Thanks for the tip!

Posted by: Joseph Marchelewski at August 13, 2009 05:16 PM

Thank you so much! the timing could not be better! I just took in a client who decided to stop going pro se when he got the SJ motion. I'm in state court - I do foreclosure defense - but the language of the rule is identical. This is why I spend time in BlawgWorld before work every morning.

Posted by: Catherine Mulcahey at August 14, 2009 07:49 AM

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