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May 19, 2009

Discovery: The Miracle 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.

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.

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Disruptive: The "early-in-case" Rule 56 motion.

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.

It will fluster even the most battle-hardened been-there seen-that GC or in-house counsel.

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. 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.

Note: During the course of today, John Day, Tennessee trial lawyer, and a man who--just like me--thinks it's a real privilege to practice law, has been just a few blocks from both my old D.C. work and residence neighborhoods, with a hotel about two blocks from our current D.C. office. Some months ago, responding to an earlier post very similar to this one, John made this fine comment, which I wish I had 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 in a sequence appropriate for that case.

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East Capitol Street: Beloved former WAC? "living area", about four blocks from SCOTUS.

Posted by JD Hull at May 19, 2009 11:11 PM

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