Adam N. Steinman[*]
In 1986, the Supreme Court decided three cases—Anderson v. Liberty Lobby, Celotex v. Catrett, and Matsushita Electric v. Zenith Radio —that transformed summary judgment from “a disfavored procedural shortcut” to a central feature of federal civil litigation. Summary judgment today is so important that federal courts have cited the three decisions in the 1986 trilogy more frequently than any judicial decisions in the history of American jurisprudence. For the first time since the trilogy (and indeed since the Federal Rules of Civil Procedure came into effect seventy years ago), the Civil Rules Advisory Committee has proposed a major revision to Rule 56’s summary judgment process.
The aim of the Committee’s proposal is laudable: “to improve the procedures for making and opposing summary judgment motions, and to facilitate the judge’s work in resolving them.” It accomplishes this goal by adopting a “point-counterpoint” process, similar to procedures that have been used in several federal districts via local rule. Under this process, the summary judgment movant must file a “statement”—separate from the motion and brief—that “concisely identifies in separately numbered paragraphs only those material facts that cannot be genuinely disputed and entitle the movant to summary judgment.” The nonmovant must then file a “response”—separate from its brief opposing summary judgment—that accepts or disputes each of the facts in the movant’s statement, and may also state “additional material facts that preclude summary judgment.” The movant must file a “reply”—separate from its reply brief—that accepts or disputes any additional facts stated by the nonmovant. In proposing this procedure, the Committee has wisely stated that “no change should be attempted in the summary judgment standard or in the assignment of burdens between movant and nonmovant,” preferring “to leave these matters to continuing evolution under the 1986 Supreme Court decisions that have guided practice for the last twenty years and more.”
This Essay identifies several problems with the proposed text that could have unfortunate consequences and contravene the Committee’s intent. In particular, the proposed text can be read to make significant changes to the summary judgment standard and the burdens on litigants at the summary judgment phase. At the very least, it may inadvertently dictate questionable approaches to aspects of summary judgment procedure that have yet to be directly addressed by the Supreme Court. Although the Committee’s stated intent to retain the existing standard and burdens might spur courts to interpret the new text to avoid these ramifications, the safer course is to revise the Committee’s proposal before it is officially transmitted in spring 2009. Because the proposed amendments affect so critical an aspect of civil litigation as summary judgment, an ounce of prevention is especially well-advised.
Part I of this Essay examines proposed Rule 56(c)(4), which addresses how parties must support the factual positions they express in their statement, response, and reply. Part II examines proposed Rule 56(c)(5), which authorizes parties to challenge the admissibility of their opponent’s summary judgment material. Part III points out a minor ambiguity in the proposed rule concerning the standard for evaluating additional material facts asserted in the nonmovant’s response. Detailed suggestions for revising the proposed amendments appear in the Appendix to this Essay.