Practice Management

Discovery: The Miracle of subdivision (f) of Rule 56

By Dan Hull

(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.

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 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 the most battle-hardened been-there seen-that GC or in-house counsel.

Disruptive: The early case Rule 56 motion.

Full post as published by What About Clients? on November 26, 2008 (boomark / email).