F.r.c.p. 56(f): Obtaining Additional Discovery Time When Facing Summary Judgment

• Publication year: 1996
• Pages: 43
• Citation: Vol. 25 No. 7 Pg. 43

25 Colo.Law. 43 Colorado Lawyer 1996.

1996, July, Pg. 43. F.R.C.P. 56(f): Obtaining Additional Discovery Time When Facing Summary Judgment

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Vol. 25, No. 7, Pg. 43

F.R.C.P. 56(f): Obtaining Additional Discovery Time When Facing Summary Judgment

by Peggy J. Anderson

When a motion for summary judgment is made and supported as provided in Federal Rules of Civil Procedure ("F.R.C.P.") 56, an opposing party may not rest on the mere allegations or denials of his or her pleading.(fn1) The opposing party must either establish the existence of a triable issue of fact pursuant to F.R.C.P. 56(e) or invoke the protection of Rule 56(f) by explaining why he or she cannot yet present facts to justify his or her opposition.(fn2) If the opposing party does not so respond, that party risks entry of summary judgment against him or her.(fn3) This article addresses how and under what circumstances the protection of Rule 56(f) may be invoked and the course of action available to a court once the protection is invoked.

Protection Available Under F.R.C.P. 56(f)

F.R.C.P. 56(f) provides as follows:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

This rule provides a means whereby a party opposing a motion for summary judgment can seek additional discovery time to obtain facts to justify his or her opposition, prior to a court ruling on a motion for summary judgment. By providing an alternative to filing a response establishing the existence of a triable issue of fact under F.R.C.P. 56(e), Rule 56(f) safeguards against a premature or improvident grant of summary judgment.(fn4)

Affidavits under Rule 56(f) are to be distinguished from those under Rule 56(e). Rule 56(e) contemplates evidentiary affidavits that would be submitted in support of or in opposition to a motion for summary judgment.(fn5) Rule 56(f) does not deal with the evidentiary affidavit, but with an affidavit setting forth reasons why the opposing party is currently unable to present evidentiary affidavits in support of his or her opposition to a motion for summary judgment.

Once a party opposing a motion for summary judgment shows valid reasons why he or she cannot present facts essential to justify his or her opposition to the motion, the court's discretion is invoked.(fn6) The court "may refuse the application for judgment, order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."(fn7) A Rule 56(f) request for additional discovery should be treated liberally unless dilatory or lacking in merit.(fn8)

While a court has discretion under Rule 56(f) to allow additional discovery, the rule does not require that summary judgment be delayed until discovery is complete.(fn9) Otherwise, the utility of summary judgments for circumventing frivolous claims and those in which no material issue of fact exists would be frustrated.(fn10)

When faced with a Rule 56(f) request for additional discovery time, some courts have denied summary judgment without prejudice to the movant's right to reapply at a later date.(fn11) Because the rule also authorizes a court to make such other order as is just, some courts have imposed limitations on discovery. For example, some courts have required that the desired discovery be completed within a specified period of time.(fn12) Others have limited the persons,(fn13) scope(fn14) or issues available for discovery.(fn15)

In First National Bank of Arizona v. Cities Service Company,(fn16) the U.S. Supreme Court held that a party opposing a motion for summary judgment was properly limited in the discovery permitted him prior to rendering of a summary judgment against him. The opposing party was limited in the number and scope of depositions, as well as the scope of document production. The Court stated that Rule 56(f) "provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery."(fn17)

At first glance, this language would seem to indicate that discovery is less extensive in Rule 56(f) situations than it is in other situations. However, the U.S. Supreme Court noted in First National Bank of Arizona that the opposing party had not demonstrated that additional discovery

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would produce anything meaningful.(fn18) In addition, the Court pointed out in that case that even with the limitations on discovery, the opposing party had already conducted sufficient discovery during the five years that the motion for summary judgment had been pending.(fn19)...