When there is missing evidence in a motion for summary judgment, what should counsel file?

When there is missing evidence in a motion for summary judgment, what should counsel file?

• A. A motion to compel and affidavit/declaration in which reasons are specified and demonstrates how the testimony would enable counsel to oppose the motion.
• B. A motion for continuance.
• C. A notice of voluntary dismissal.
• D. A motion for rehearing.

Answer: (A)

When a motion for summary judgment lacks essential evidence, the client should seek more time and discovery by filing a motion to compel discovery, with an affidavit or declaration explaining exactly what evidence is missing and how obtaining it would enable counsel to oppose the motion. This request is typically supported by Rule 56(d) (formerly 56(f)), which allows a court to defer ruling on the summary-judgment motion to permit discovery or to compel production of the needed materials. The affidavit should specify what specific documents or testimony are needed, what discovery efforts have been made, why the information is unavailable despite reasonable diligence, and how the new evidence could create a genuine issue of material fact that defeats summary judgment. A continuance might delay the case but does not secure the missing discovery; a voluntary dismissal ends the case, and a rehearing is for reconsideration after a ruling has been entered. The key idea is obtaining the missing evidence so the court can properly assess whether there is a genuine dispute of material fact.

When a motion for summary judgment lacks essential evidence, the client should seek more time and discovery by filing a motion to compel discovery, with an affidavit or declaration explaining exactly what evidence is missing and how obtaining it would enable counsel to oppose the motion. This request is typically supported by Rule 56(d) (formerly 56(f)), which allows a court to defer ruling on the summary-judgment motion to permit discovery or to compel production of the needed materials. The affidavit should specify what specific documents or testimony are needed, what discovery efforts have been made, why the information is unavailable despite reasonable diligence, and how the new evidence could create a genuine issue of material fact that defeats summary judgment.

A continuance might delay the case but does not secure the missing discovery; a voluntary dismissal ends the case, and a rehearing is for reconsideration after a ruling has been entered. The key idea is obtaining the missing evidence so the court can properly assess whether there is a genuine dispute of material fact.