Twelve Steps To Avoid Summary Judgment on a Fact Issue

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions.  (The law only applies to cases filed on or after July 1.)   This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years.  In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing.  Here are the twelve steps you should follow to (a)  maximize your chances of putting your case in the  posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

1. Serve discovery with  your complaint.  There is rarely a tactical reason not to serve discovery with a complaint.  The only exception to this rule  that I can think of is that the plaintiff comes to you so late that you only have time to file the complaint before the statute of limitations expires.  But, unless you can articulate this or some other good reason not to serve discovery with the complaint, do it.  If you can’t serve discovery with the complaint, serve the discovery within fifteen days of the service of the complaint.

2. Follow-up on tardy discovery responses.  If your opponent has not responded to discovery within the time period required by the rules, follow-up and get an agreement about when discovery will be answered.  Confirm the agreement in writing.  If an agreement cannot be reached, promptly file a motion to compel and set the motion for a hearing.  If your opponent seeks to avoid the hearing and promises to respond to discovery, make sure any agreement reached is in writing.

3. Promptly identify who you want to depose and send a letter to your opponent requesting deposition dates for those deponents.  If your don’t get a timely response, send deposition notices.  Then, when your opponent complains about the dates you have selected, use your judgment to either re-set the depositions to accommodate your opponent or push forward.  In any event document what you have done and  why your have done it.  Some lawyers (like this one) often serve deposition notices with the complaint and then typically work with opposing counsel to set a date convenient for all concerned.  Exactly what you do is not as important as doing it on a timely basis and documenting your efforts.

4.  If you get written discovery responses that are insufficient, promptly send a "good faith" letter discussing the deficiencies and asking for complete responses.  Give a deadline for a response to your letter.  if the information is not forthcoming, file a motion to compel.  If your opponent asks for more time to respond and you agree to give it, confirm your agreement in writing, stating the reason why you are giving an extension.

5. Analyze the discovery responses and deposition testimony and determine whether any additional discovery in necessary.  If written discovery is necessary, do it.  If you need depositions, request those depositions in writing.

6.  Seek a scheduling order that has sufficient time to complete discovery before a deadline for filing summary judgment motions.  Leave sufficient time for court reporters to complete deposition transcripts.  Use care not to serve discovery or take depositions so late that it is impossible under the scheduling order  to do follow-up discovery.

7.  Pay attention to discovery deadlines, deadlines for disclosing and deposing experts, and deadlines for filing motions for summary judgment.  Review your file well in advance of these deadlines to determine if additional discovery is necessary.  If it is impossible to meet a deadline, file a motion to extend the deadline before the deadline passes and explain why you need more time.

8.  If at any time in this process you get hit with a motion for summary judgment, immediately evaluate your file and determine the state of discovery.  For example, do you have written discovery that is past due?  If so, write a letter and say you need a response immediately.  Is written discovery outstanding but not due?  Write a letter saying that you need timely, complete responses.  Do you have a request for deposition dates outstanding?  Notice the depositions before the hearing.  Do you have a "good faith" letter that has been ignored?  File a motion to compel.

9.  After doing the file review and taking the action suggested in No. 8, write your opponent and ask if the hearing on the motion for summary judgment can be postponed until the discovery is complete.  Identify with reasonable particularity what discovery you need to finish.  Give your opponent a short deadline within which to respond to your request.

10.  If your opponent agrees to delay the hearing, submit an agreed order postponing the hearing.

11.  If your opponent will not agree to postpone the hearing, file a Rule 56.07 motion if you believe that you need additional discovery to create a genuine issue of material fact and you believe that the additional discovery will likely help you create a genuine issue.  This motion  must be accompanied by an affidavit setting forth what discovery is necessary and why it is necessary.  Reference and attach your letters and emails that demonstrate your attempts to do discovery and explain how the defense has failed or refused to cooperate in that effort.  

12.  File your Rule 56.07 motion and attempt to have it set for a hearing  before the hearing date for the motion for summary judgment.  If that is not possible, have it set for the same day and include a request for an extension of time to respond to the summary judgment motion under TRCP 6.02. Argue  that you in good faith submitted an appropriate Rule 56.07 motion and that, if that motion is denied for whatever reason, you should have a reasonable time to respond to the Rule 56 motion itself.  Depending on who your trial judge is, you may wish to file whatever response you can to the Rule 56 motion but continue to maintain that you should be permitted to have more time to respond because of the reasons stated above.

Following these twelve steps should decrease the need to file a Rule 56.07 motion or help you win the motion if one is necessary.