Rule 56(d) Declaration

What It Is

Rule 56(d) provides that if the party opposing summary judgment “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition,” the court may defer ruling or deny the motion, allow time to take discovery, or issue any other appropriate order.

It exists because defendants sometimes move for summary judgment early, before discovery, or after producing only what helps them. Without Rule 56(d), you would have to oppose the motion with evidence you have no way to obtain.

What the Declaration Must Say

Courts deny vague requests. A Rule 56(d) declaration must state, specifically:

1. the facts you need and do not have
2. why you cannot present them now: discovery has not opened, the defendants have not produced a category of documents, a deposition has not been taken, a motion to compel is pending
3. what discovery would obtain them, and from whom
4. how those facts would create a genuine dispute on an element the motion attacks

“Plaintiff needs more discovery” fails. “Plaintiff has requested the complete body-camera recordings of Officers Martinez and Lewis (RFP 3). Defendants have produced a 90-second excerpt and objected to the remainder. Plaintiff’s motion to compel is pending (Dkt. 41). The complete recordings are expected to show the 40 seconds before the arrest, which Plaintiff contends will show he was standing still, a fact material to the probable-cause and excessive-force elements the motion attacks” succeeds.

When to Use It

• The defendants move for summary judgment before the Rule 26(f) conference or before you have received initial disclosures.
• Discovery is open but the defendants have not produced documents you requested, and the deadline to respond to the motion arrives first.
• A deposition you need has not been taken because of scheduling or cost.
• A motion to compel is pending.

File the declaration with your response, by the response deadline. Do not file it instead of a response if you have some evidence. File both: oppose on what you have, and ask under Rule 56(d) for what you lack.

What It Does Not Do

It does not excuse you from discovery you could have taken and did not. If discovery has been open for a year and you served nothing, the court will not defer. Diligence is part of the showing.

See the process step on summary judgment and the article on writing a declaration.

Key Authority

• Fed. R. Civ. P. 56(d) — when facts are unavailable to the nonmovant