Fed. R. Civ. P. 56(d): A Cautionary Tale When You Need Additional Discovery

Defending against a summary judgment motion may be the most important briefing on the defense side of a case. But what if you find yourself in the position of not having enough information to rebut the other party’s motion? This might happen if the other side files a motion for summary judgment early in the case, or if a new point is raised in its motion that was not adequately explored in discovery. In federal court, Rule 56(d) provides a way to ask for more discovery (and to hold off on deciding the motion until it can be conducted). While normally requests for more information are liberally granted, a recent case out of the 10th Circuit cautions that you must make sure the rationale for such a request is carefully presented to the court.

Requests for More Discovery: Fed. R. Civ. P. 56(d)

First, a bit of background. When a nonmoving party finds that it cannot present facts that are essential to oppose summary judgment, the Federal Rules of Civil Procedure provide for a remedy. Under Fed. R. Civ. P. 56(d), the nonmoving party can submit an affidavit that asks for additional time for discovery, which will permit the court to either (1) defer considering the motion for summary judgment (or deny it all together); (2) allow more time for the nonmoving party to obtain additional discovery; or (3) issue any other order as is necessary. The idea behind the rule is to make sure the court doesn’t prematurely grant summary judgment before giving the nonmoving party a chance to gather all the information necessary to show there really is a factual dispute.

Rule 56(d) provides the mechanism, but doesn’t specify exactly what needs to be included in the affidavit to convince the court to grant relief. This is where case law comes in. “To obtain relief under Rule 56(d), the movant must submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.”¹

In Colorado state court, a similar process and mechanism exists. C.R.C.P. 56(f) supplies the rule for state court, but is worded differently.

A Cautionary Tale

A recent case from the 10th Circuit outlines why it is important to be sure each and every element is listed and discussed.² Though this case was more about federal preemption law than motions practice, it nevertheless provides a good reminder of why it is important to follow the proper procedure when asking for relief under Rule 56(d).

The case, Cerveny v. Aventis, Inc., involved a products liability action where the family of a child born with certain birth defects sued the manufacturer of a drug they claimed caused the injuries. Ultimately, they lost the case on summary judgment. On appeal, among other things, the family argued that the trial court had erred in not considering their request to conduct additional discovery after the drug company moved for summary judgment. The family had submitted an affidavit under Rule 56(d), but the trial court never ruled on it, granting summary judgment in favor of the drug company.

In a published opinion, a panel of the 10th Circuit affirmed. The Court noted that not all of the elements required by the rule were presented in the affidavit. Among other things, the family did not explain how additional discovery would rebut the drug company’s motion. The family argued, however, that all the elements had been briefed in their summary judgment response, and therefore, were in front of the court for decision. While the 10th Circuit noted that the elements were present in the response brief, it refused to consider unverified statements in the brief that were not in the sworn affidavit. Because the family did not satisfy the requirements of Rule 56(d), no abuse of discretion in the trial court’s decision was found, and so no remand for the court to rule on the request in the first instance was necessary.

Takeaways for Practice

This case provides some good reminders on what to do if you find yourself in the position of defending a motion for summary judgment without all the information you need to do so. First, the case gives a good outline of what is required to adequately present a Rule 56(d) affidavit in federal court. Always be sure to present each and every element discussed by the rule within the affidavit. In this case, the family included all the elements in its summary judgment response, but not in the affidavit itself. Because the elements were not included in the affidavit, the 10th Circuit refused to look at the response. Do not count on being able to explain or bolster the affidavit in a summary judgment response.

Next, if there is any chance that you’ll want to argue that the trial court erred in granting summary judgment without allowing discovery, it is important to file an affidavit supporting the elements. This will at least preserve the issue for appeal, and, may very well avoid the issue all together.

Finally, if the court does not rule on the Rule 56(d) affidavit before granting summary judgment, consider raising this issue on appeal. If the affidavit was properly presented to the court, the appellate court may be more likely to remand the case back to the court for a ruling. In the case discussed here, the family did not complain that the district court failed to rule on the motion, and, because of its conclusion that the affidavit was insufficient on its face, the 10th Circuit concluded that a remand was unnecessary.

It may seem to the reader that this case was dismissed on a technicality and was a harsh result for the family. Sometimes failing to observe a technicality does not have a bad result, but you can’t count on it.

¹Cerveny v. Aventis, Inc., No. 16-4050, slip. op. at 40 (10th Cir. May 2, 2017).

²See id.