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April 20, 2006

Sensitive Litigation Moment No. 2: The "Miracle" of Rule 56(f), Fed. R. Civ. P.

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 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 granted, the movant wins. But what if a summary judgment motion is brought against your client--suddenly and out of the blue--and the local rules or local practice 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 SJ after 20 days of the claim, and defendants can file "at any time". In contentious, high stakes litigation, a quick SJ motion right after the commencement of a lawsuit can be extraordinarily disruptive.

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

SLM No. 1, re: Rule 36, is here.

Posted by JD Hull at April 20, 2006 09:39 AM

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