Adam Steinman (University of Cincinnati - College of Law) has posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process (Northwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:
The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.
And from the text:
As an initial matter, the proposed amendments may inadvertently modify the summary-judgment burden that applies to the party (typically the plaintiff) who will bear the burden of production at trial. The text provides that parties may support their factual positions by “showing . . . than an adverse party cannot produce admissible evidence to support the fact.”10 A plaintiff who bears the burden of production at trial, however, should never be able to support its factual position simply by showing that the defendant will not be able to produce admissible evidence to support its view of the facts. That is precisely the view of summary judgment that the Supreme Court rejected in Celotex. If the defendant can show that the plaintiff will lack sufficient evidence to satisfy the plaintiff’s burden of production at trial, the defendant need not “support its motion with affidavits or other similar materials negating the opponent’s claim.”11
The impact of the proposed amendments would be even more remarkable when the party with the burden of production seeks summary judgment. If taken literally, the proposed rule would allow a plaintiff to support summary judgment in its favor simply by showing that the defendant “cannot produce admissible evidence” at trial.12 This would be a drastic change to current summary-judgment burdens. Even if the defendant (who ordinarily does not bear the burden of production for the elements of a plaintiff’s claim) will have no admissible evidence it can use at trial, the defendant should prevail as long as the plaintiff fails to meet its burden of production. The defendant’s lack of evidence— standing alone—surely cannot be a sufficient basis for awarding summary judgment to the plaintiff.
Steinman's arguments are at least plausible, and surely deserve serious consideration. My own sense is that complexification of the federal rules frequently leads to unintended consequences, and I am quite skeptical of the proposed Rule 56(c) procedures--essentially an attempt to create a highly formalized set of procedures that micromanage the contest over the application of the "genuine issue of material fact" to the record.
Proceduralists will surely want to read Steinman's lucid, brief, and illuminating essay.