A motion for summary judgment in a civil action, brought under Fed. R. Civ. P. 56 or its state court counterpart, Mass. R. Civ. P. 56, can be an important strategic element of a claim or defense. When evaluating whether to bring such a motion and its potential for success, counsel must think carefully about the timing of the motion and its relationship to the overall plan for discovery. Indeed, the timing of the motion may have an important effect in determining the likelihood of success.

There is No Fixed Time
In the U.S. District Court, the deadline for the service and filing of summary judgment motions is likely to be set by the court at the Rule 16 scheduling conference. In Superior Court, a deadline for bringing the motion is set by the applicable Time Standards Tracking Order, and in District Court the time may be set at an initial Case Management Conference. In each instance, the deadline is likely to occur after the parties have been afforded time for discovery and before the case is set for a pretrial conference. Not surprisingly, litigators commonly, but narrow-mindedly, view summary judgment motions as only post-discovery procedures. As a result, parties often find themselves scrambling to complete discovery prior to the deadline for dispositive motions, and frequently need to seek an extension so that the discovery record can be fully developed before the motions are filed.

But there is nothing in either the Massachusetts rules or the federal rules that requires that summary judgment motions await the conclusion of discovery. While court orders may impose deadlines for the motions, the orders never give the parties a date before which such motions cannot be brought. In fact, Mass. R. Civ. P. 56 permits a plaintiff to bring a summary judgment motion as early as 20 days after the action is commenced, and allows a defendant to bring a motion at any time. Similarly, Fed. R. Civ. P. 56 sets forth no required time period to elapse before a motion for summary judgment can be filed. Therefore, counsel may consider bringing such motions at almost any time prior to the deadline, and counsel anticipating the need to oppose a summary judgment motion must consider the possibility that it could be filed at any time.

The variable timing of a summary judgment motion implicates two important considerations: First, counsel must think about when, during the case, the motion should be brought, or when it might be anticipated. Second, counsel must plan discovery according to the likelihood, strength and possible timing of a summary judgment motion.

Counsel Should Consider the Timing of the Motion
One of the stated goals of the rules of civil procedure is "to secure the just, speedy and inexpensive determination of every action." Mass. R. Civ. P. 1. In support of this worthy goal, summary judgment is an available mechanism that can terminate litigation of cases which present no issues of material fact, thereby avoiding the needless expense and delay of a trial followed by a directed verdict. Correllas v.Viveiros, 410 Mass. 314, 316 (1991).

An attorney in a civil case is under no obligation to permit the opposing party to have a full course of discovery before serving a summary judgment motion. Therefore, a motion for summary judgment can prevent not only unnecessary trials, but also unnecessary discovery. Thus, the timing of a summary judgment motion may have a profound effect on the expense and speed of discovery. Although it is axiomatic that no witness should be deposed unless the attorney taking the deposition has a specific reason to depose the witness, in practice many depositions are taken without them adding to, or subtracting from, the strength of a case. Unproductive discovery is one type of expense and delay that summary judgment can prevent.

Rather than automatically awaiting until the close of discovery before considering summary judgment, counsel should think very early on about whether a summary judgment motion might have the salutary effect of foreclosing discovery which, in the end, would not have made any difference in the outcome of the case and which, therefore, would not have been worth the cost to the parties. For example, it may be well-advised to file an early motion for summary judgment in a case in which the material testimony of numerous witnesses is likely to be cumulative. Similarly, a party that anticipates unfavorable evidence that has not yet been produced by the opposing party might consider an early motion, to force the opposition to produce the evidence, if it is to be forthcoming. Under these circumstances, however, the cost of bringing the motion should be weighed against the possibility that the unfavorable evidence will come forward to undermine the motion's chance of success.

A motion for summary judgment served before the close of discovery is likely to be met with objection under Mass. R. Civ. P. 56(f) or Fed. R. Civ. P. 56(d), whichever is applicable. Both rules permit a court to deny the motion, or to order a continuance, to permit the opposing party to conduct such discovery that is "essential to justify his opposition." However, Rule 56 does not require that the parties await the close of discovery before submitting a summary judgment motion for decision, and the provisions certainly do not require a court to defer decision on the motion until the parties have engaged in unfettered discovery. Instead, Rule 56 merely permits a continuance in favor of an opposing party, in the sound discretion of the court. Even if the court accedes to such a request, by its explicit terms, this provision limits further discovery to that which the court deems "essential." Therefore, counsel who have reasonable grounds to move for summary judgment need not simply wait for the close of discovery before serving the motion. Rather, counsel should carefully consider the timing for the motion which would best serve the client's interest.

Consider the Plan for Discovery
Counsel should approach discovery with a view to planning motions for summary judgment or, alternatively, for opposing motions likely to brought against their clients. Although many cases, including most negligence actions, do not carry significant potential for summary judgment disposition, a fair proportion of civil cases may be seen, even at the outset, to have such potential. If they do, then the client's interests are best served by prioritizing discovery, which will maximize the chances of prevailing on a motion for summary judgment.

Counsel who considers that their clients may be entitled to have a case disposed on summary judgment should focus first and foremost on the evidence that will support the motion. The benefits of summary judgment -- efficiency and economy -- will be lost or severely dampened if counsel engages in costly and extensive discovery on subjects immaterial to the motion. Similarly, the chances of getting summary judgment granted in the client's favor may be diminished if seemingly extraneous evidence is obtained, which the opposing party can try to use to undercut the evidence that otherwise favors the motion. A court will find it easier to grant the motion if it is based upon relatively narrow factual grounds, unencumbered by multiple transcripts and exhibits, which serve only to cloud the issues. Simply put, a motion filed early on in discovery may have a better chance of success than one filed after voluminous testimony and exhibits have thickened the record.

Equally important, counsel who anticipate having to oppose a summary judgment motion are advised to focus their discovery efforts on immediately developing a record to oppose the motion, or risk losing the opportunity to do so. Precisely because there is no obligation to await the close of discovery before moving for summary judgment, counsel who anticipate a motion for summary judgment from an opponent must be prepared to oppose the motion at any time. Counsel should promptly secure testimony and exhibits essential to their opposition, and should not assume that they will be afforded a full course of discovery to oppose a summary judgment motion.

Deferring critical discovery can have disastrous consequences. A party facing a summary judgment motion without having taken essential discovery will find itself on the defensive and at the mercy of the court's discretion in ruling on a request for more time to develop the record. That party will have the burden to: (1) show good cause for the failure to have discovered the facts sooner; (2) set forth a plausible basis for believing that specific facts, susceptible of collection within a reasonable time frame, probably exist; and (3) indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion. The Alphas Company v. Kilduff, 72 Mass. App. Ct. 104, 110 (2008).

A party opposing a well-supported summary judgment motion already must sustain its claims with evidence substantiating each essential and contested element of its claims. See, e.g., Glidden v. Maglio, 430 Mass. 694, 696 (2000). Prompt and efficient discovery of facts in support of its claims will go a long way to help the party avoid being saddled with the additional burden of justifying to the court its need for expanded discovery.

Whether you are anticipating the need to oppose a summary judgment motion, or are seeking a prompt disposition of the case by bringing one, you should give careful thought to the options for the timing of a motion, and of the essential discovery which will be needed to support or to oppose it. Success may depend upon it, and your client may be very grateful for it.

Eric P. Finamore practices civil litigation in Boston. He is a member of the MBA's Civil Litigation Council, and the managing member of Weston Patrick PA.

Considerations of Timing in Summary Judgment Motions