Reviewing the Record

Reviewing the Record

A court deciding a summary judgment motion does not have to read the whole file. Rule 56(c)(3) says so directly: the court need consider only the cited materials, but it may consider other materials in the record.¹ The court’s duty reaches only what the parties cite; its permission reaches everything in the record.

The division follows from the way Rule 56(c)(1) assigns the work. A party who says a fact cannot be disputed, or is genuinely disputed, must support the assertion by citing particular parts of the record—depositions, documents, affidavits or declarations, admissions, interrogatory answers, and the like—or by showing that the materials the other side cites do not establish the point.² The burden of finding support thus falls on the party who needs it, and that party is best placed to carry it. The lawyer who built the position knows which deposition page or exhibit proves the point; the judge, facing a file that may run to thousands of pages, does not. A rule that made the court search the file for every fact on both sides would slow the motion and turn the judge into an advocate. The permission to look past the citations serves a narrower end. A judge who knows of an item that settles a point need not pretend otherwise.

Two situations test the line between the parties’ duty and the court’s discretion. In the first, material sits in the record but no party cited it, and the question is when the court may use it and who pays if neither side points to it. In the second, a party’s assertion of fact lacks proper support, or a party fails to address the other side’s assertion as Rule 56(c) requires, and the question is what the court may do about it. Each gets its own subsection.

Materials Not Cited

Rule 56(c)(3) fixes the court’s reading duty with two verbs. The court need consider the cited materials, and it may consider the rest.³ The first verb states a duty tied to a defined set of papers: the items the parties pointed to. The second grants a permission that reaches the whole file. A judge who skips an uncited exhibit commits no error, and neither does a judge who uses one.

The duty is narrow because the party that needs a fact is expected to point to its proof, and the party that fails to point pays for the omission.

The second verb exists so that a ruling need not rest on an incomplete picture of the record. A court that knows of an uncited item bearing on a fact is not forced to pretend otherwise, and its freedom to use the item protects against granting a motion the full record would defeat or denying one the full record would support.

The line between cited and uncited material also moves as the briefing proceeds, and the no-evidence motion shows how. A movant who lacks the burden of proof at trial need not produce evidence that negates the opponent’s claim. It may discharge its burden by “showing”—that is, pointing out to the court—that the record contains no evidence to support the nonmovant’s case. The Supreme Court has refused to read its decision in Adickes v. S.H. Kress & Co. as putting on the movant the burden of producing evidence that shows the absence of a genuine issue on a matter where the nonmovant bears the burden of proof.⁴

The pointing must be honest about the record, however. A movant who rests on the absence of evidence may not ignore evidence the record clearly contains. It must, as an initial matter, attack the adequacy of that evidence, and a failure to do so means it has not discharged its initial burden of production.⁵ A nonmovant who answers a no-evidence motion therefore does well to cite the overlooked item. Once cited, the item is before the court as a cited material, and the movant must meet it.

Because the permission to look further is discretionary, no party can count on it. A party whose fact depends on an item in the file protects the fact by citing the item, since a court that declines to look further has done what the rule allows. A different problem arises when the papers themselves fail to support a fact, whether or not the file holds help.

Failure to Support a Fact

Rule 56(e) governs the party whose papers fall short of Rule 56(c). If a party fails to properly support an assertion of fact, or fails to properly address another party’s assertion of fact as Rule 56(c) requires, the court has four responses available.⁸ The trigger reaches both sides of the motion. A movant who calls a fact undisputed but cites nothing, or cites an item that does not say what the movant claims, has failed to support the assertion. A nonmovant who answers a cited fact with a pleading denial, a promise of trial evidence, or silence has failed to address it. Rule 56(c)(1) supplies the measure: whoever says a fact is or is not genuinely disputed must cite particular parts of the record or show that the other side’s materials fall short.⁹ The four responses are graded, running from a chance to repair the defect to a judgment that ends the case.

The mildest response gives the party an opportunity to properly support or address the fact.¹⁰ Most defects in a summary judgment record are defects of paper: a citation to the wrong page, an unsigned declaration, an exhibit that was never authenticated. A court that entered judgment because of such a slip would decide the case on drafting skill and reward the opponent for a flaw that says nothing about whether the fact is true. The admissibility objection shows where the opportunity does its work. A party may object that cited material cannot be presented in a form that would be admissible in evidence.¹¹ The proponent must then show that the material is admissible as presented or explain the admissible form it anticipates, and a proponent who can do neither will find the court unwilling to consider the evidence.¹² A chance to cure suits the proponent who can name the witness who will supply the foundation, since the repair costs little and brings the record into line with what a trial would show.

The second response applies when the failure belongs to the party who should have contested a fact. The court may consider the fact undisputed for purposes of the motion.¹³ The phrase for purposes of the motion limits the effect: the court decides this motion on a record in which the fact is uncontested, and it does not declare the fact established for trial. The response exists because the Rules put the burden of locating support on the party who needs it, and the court need consider only the cited materials.¹⁴ If a nonmovant could defeat a supported motion by saying nothing, it would have no reason to reveal the evidence it holds, and the motion would become a request the opponent could decline. The same logic bars a nonmovant from standing on its pleading. The motion exists to test whether an issue set out in the pleadings is in fact in dispute, so a denial in the answer is the thing under test and gives no answer to the motion.¹⁵

A nonmovant who cannot yet say whether a fact is disputed gets no shelter from saying so. “I don’t yet know whether the facts are disputed” is not a sufficient response to defeat summary judgment. The nonmovant’s tools are discovery, which can require the other side’s employees to testify under oath in depositions or interrogatory answers, and an affidavit under Rule 56(d) asking for a continuance to complete the discovery needed to respond. That affidavit can buy the time to find out.¹⁶ Rule 56(d) is taken up in detail below.

A fact treated as undisputed is an input to the ruling, and the third response shows what the court does with it. The court may grant summary judgment if the motion and supporting materials, including the facts considered undisputed, show that the movant is entitled to it.¹⁷ The standard in Rule 56(a) has not changed. The movant must still show that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹⁸ Treating a fact as undisputed settles whether that fact is contested; it does not settle whether the facts so treated entitle the movant to judgment, and they may fall short. The fourth response, any other appropriate order, lets the court fit the remedy to the defect, for example by setting a deadline to cure and stating what will follow if the deadline passes.¹⁹ The court chooses among the four by the degree of the failure.

When a nonmovant files nothing, the question is whether the movant wins by default, and the answer depends on what the movant’s own papers show.

The denial in the answer carried no weight, and the retailer’s silence gave the court nothing to set against facts that, taken as true, establish the claim.

Now change the movant’s papers and keep the opponent’s silence.

The two motions differ in the completeness of the movant’s showing. The supplier’s materials covered every element, so the retailer’s silence converted a complete showing into judgment. The store’s materials left open a possibility from which a jury could infer an agreement, so even a wholly silent opponent could not supply the missing proof. Rule 56(a) requires the movant to show that no genuine dispute exists, and Rule 56(e)(3) allows judgment only when the motion and supporting materials show entitlement.²⁰ A gap in those materials is the movant’s own failure, and it is not a fact the opponent left unaddressed.

The same reasoning works issue by issue. Rule 56(a) permits a motion on “part of each claim or defense,” so a court that finds no genuine dispute on one issue within a claim may resolve that issue without the jury and leave the disputed issues for the jury to decide.²¹ Suppose the retailer in the supplier case had answered with a declaration from its receiving clerk, who swore that one $4,000 shipment never arrived. That declaration creates a dispute about that shipment and about nothing else. The court may resolve the undisputed issues and leave the one contested shipment for trial. A nonmovant’s failure to address one fact therefore settles only that fact and the issues that depend on it.