Updated August 24, 2020.
When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his 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.
Thus, a party opposing a motion for summary judgment may ask the court to defer ruling on the motion until further discovery is conducted. Particularly where a motion for summary judgment is filed long before the scheduled close of discovery, a court may be inclined to allow further discovery by a party opposing the motion.
The court faced with a Rule 56(f) motion should consider authoritativeness, timeliness, good cause, utility, and materiality.
Although a Rule 56(f) motion is committed to the court’s discretion, and the court may grant such a motion even when all five criteria are not established, when all five requirements are satisfied, a strong presumption arises in favor of relief.
A Rule 56(f) motion must be filed in a timely manner (as soon as possible after service of a motion for summary judgment is advisable), and must be supported by an “authoritative” affidavit based on the affiant’s personal knowledge.
With respect to good cause, the party seeking additional discovery must show that it has diligently pursued discovery but has not been able to obtain the discovery it now seeks. Possible justifications might be that the party seeking relief under Rule 56(f) propounded discovery but the motion for summary judgment was filed before answers were received, or that the party seeking summary judgment has refused to produce requested discovery.
The utility factor is satisfied by showing that there is a plausible basis for believing that the discoverable facts specified in the Rule 56(f) motion exist.
Materiality is established where the discovery sought by the Rule 56(f) motion, if obtained, will influence the outcome of the pending summary judgment motion. The threshold of materiality is necessarily low. The facts that the party invoking Rule 56(f) seeks to discover must be foreseeably capable of breathing life into his claim or defense.
Rule 56(f) should be liberally applied where the interests of justice would be served, and relief under Rule 56(f) is strongly supported where the party moving for summary judgment has sole possession of the facts needed to oppose the motion. Moreover, the Rule 56(f) motion need not be based on evidence admissible at trial, so long as it rises sufficiently above mere speculation.
However, a party may not use Rule 56(f) to “fish” for evidence in hopes of finding something helpful to that party in the course of the discovery procedure.
Notably, a court deciding a Rule 56(f) motion must separately analyze each claim as to which additional discovery is sought. The legal elements of each claim or defense define the facts which a party must prove. They therefore circumscribe the evidence which, if discovered, would be material to those claims and defenses and would potentially influence the outcome of the pending summary judgment motion. A court may grant a Rule 56(f) motion as to discovery on some claims but deny it as to other claims.