NOTES TO RULE 56
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
This rule is applicable to all actions, including those against the United States or an officer or agency thereof.
Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. It has been extensively used in England for more than 50 years and has been adopted in a number of American states. New York, for example, has made great use of it. During the first nine years after its adoption there, the records of New York county alone show 5,600 applications for summary judgments. Report of the Commission on the Administration of Justice in New York State (1934), p. 383. See also Third Annual Report of the Judicial Council of the State of New York (1937), p. 30.
In England it was first employed only in cases of liquidated claims, but there has been a steady enlargement of the scope of the remedy until it is now used in actions to recover land or chattels and in all other actions at law, for liquidated or unliquidated claims, except for a few designated torts and breach of promise of marriage. English Rules Under the Judicature Act (The Annual Practice, 1937) O. 3, r. 6; Orders 14, 14A, and 15; see also O. 32, r. 6, authorizing an application for judgment at any time upon admissions. In Michigan (3 Comp. Laws (1929) § 14260) and Illinois (Smith-Hurd Ill. Stats. c. 110, §§ 181, 259.15, 259.16), it is not limited to liquidated demands. New York (N.Y.R.C.P (1937) Rule 113; see also Rule 107) has brought so many classes of actions under the operation of the rule that the Commission on Administration of Justice in New York State (1934) recommend that all restrictions be removed and that the remedy be available "in any action" (p. 287). For the history and nature of the summary judgment procedure and citations of state statutes, see Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423.
Note to Subdivision (d).
See Rule 16 (Pre-Trial Procedure; Formulating Issues) and the Note thereto.
Note to Subdivisions (e) and (f).
These are similar to rules in Michigan. Mich. Court Rules Ann. (Searl, 1933) Rule 30.
Notes of Advisory Committee on 1946 Amendments to Rules.
Subdivision (a).
The amendment allows a claimant to move for a summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. This will normally operate to permit an earlier motion by the claimant than under the original rule, where the phrase "at any time after the pleading in answer thereto has been served" operates to prevent a claimant from moving for summary judgment, even in a case clearly proper for its exercise, until a formal answer has been filed. Thus in People's Bank v Federal Reserve Bank of San Francisco, ND Cal 1944, 58 F Supp 25, the plaintiff's countermotion for a summary judgment was stricken as premature, because the defendant had not filed an answer. Since Rule 12(a) allows at least 20 days for an answer, that time plus the 10 days required in Rule 56(c) means that under original Rule 56(a) a minimum period of 30 days necessarily has to elapse in every case before the claimant can be heard on his right to a summary judgment. An extension of time by the court or the service of preliminary motions of any kind will prolong that period even further. In many cases this merely represents unnecessary delay. See United States v Adler's Creamery, Inc. CCA 2d, 1939, 107 F2d 987. The changes are in the interest of more expeditious litigation. The 20-day period, as provided, gives the defendant an opportunity to secure counsel and determine a course of action. But in a case where the defendant himself makes a motion for summary judgment within that time, there is no reason to restrict the plaintiff and the amended rule so provides.
Subdivision (c).
The amendment of Rule 56(c), by the addition of the final sentence, resolves a doubt expressed in Sartor v Arkansas Natural Gas Corp. 1944, 321 US 620, 88 L Ed 967, 64 S Ct 724. See also Commentary, Summary Judgment as to Damages, 1944, 7 Fed Rules Serv 974; Madeirense Do Brasil S/A v Stulman-Emrick Lumber Co. CCA 2d, 1945, 147 F2d 399, cert den 1945, 325 US 861, 89 L Ed 1982, 65 S Ct 1201. It makes clear that although the question of recovery depends on the amount of damages, the summary judgment rule is applicable and summary judgment may be granted in a proper case. If the case is not fully adjudicated it may be dealt with as provided in subdivision (d) of Rule 56, and the right to summary recovery determined by a preliminary order, interlocutory in character, and the precise amount of recovery left for trial.
Subdivision (d).
Rule 54(a) defines "judgment" as including a decree and "any order from which an appeal lies." Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary "judgment" is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pretrial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact. See Leonard v Socony-Vacuum Oil Co. CCA 7th, 1942, 130 F2d 535; Biggins v Oltmer Iron Works, CCA 7th, 1946, 154 F2d 214; 3 Moore's Federal Practice, 1938, 3190--3192. Since interlocutory appeals are not allowed, except where specifically provided by statute, see 3 Moore, op cit supra, 3155--3156, this interpretation is in line with that policy, Leonard v Socony-Vacuum Oil Co., supra. See also Audi Vision, Inc. v RCA Mfg. Co. CCA 2d, 1943, 136 F2d 621; Toomey v Toomey, App DC 1945, 80 US App DC 77, 149 F2d 19; Biggins v Oltmer Iron Works, supra; Catlin v United States, 1945, 324 US 229, 89 L Ed 911, 65 S Ct 631.
Notes of Advisory Committee on 1963 Amendments to Rules.
Subdivision (c).
By the amendment "answers to interrogatories" are included among the materials which may be considered on motion for summary judgment. The phrase was inadvertently omitted from the rule, see 3 Barron & Holtzoff, Federal Practice and Procedure 159--60 (Wright ed 1958), and the courts have generally reached by interpretation the result which will hereafter be required by the text of the amended rule. See Annot, 74 ALR2d 984 (1960).
Subdivision (e).
The words "answers to interrogatories" are added in the third sentence of this subdivision to conform to the amendment of subdivision (c).
The last two sentences are added to overcome a line of cases, chiefly in the Third Circuit, which has impaired the utility of the summary judgment device. A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. In this situation Third Circuit cases have taken the view that summary judgment must be denied, at least if the averments are "well-pleaded," and not supposititious, conclusory, or ultimate. See Frederick Hart & Co., Inc. v Recordgraph Corp. 169 F2d 580 (3d Cir 1948); United States ex rel. Kolton v Halpern, 260 F2d 590 (3d Cir 1958); United States ex rel. Nobles v Ivey Bros. Constr. Co., Inc. 191 F Supp 383 (D Del 1961); Jamison v Pennsylvania Salt Mfg. Co. 22 FRD 238 (WD Pa 1958); Bunny Bear, Inc. v Dennis Mitchell Industries, 139 F Supp 542 (ED Pa 1956); Levy v Equitable Life Assur. Society, 18 FRD 164 (ED Pa 1955).
The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. See 6 Moore's Federal Practice 2069 (2d ed 1953); 3 Barron & Holtzoff, supra, § 1235.1.
It is hoped that the amendment will contribute to the more effective utilization of the salutary device of summary judgment.
The amendment is not intended to derogate from the solemnity of the pleadings. Rather it recognizes that, despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary.
Nor is the amendment designed to affect the ordinary standards applicable to the summary judgment motion. So, for example:
Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate. Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (f) that he cannot at the time present facts essential to justify his opposition.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Preliminary draft of proposed amendments. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed the following amendment of Rule 56, dated August 15, 1991.
"(a) Of Claims, Defenses, and Issues. The court without a trial may enter summary judgment for or against a claimant with respect to a claim, counterclaim, cross-claim, or third-party claim, may summarily determine a defense, or may summarily determine an issue substantially affecting but not wholly dispositive of a claim or defense if summary adjudication as to the claim, defense, or issue is warranted as a matter of law because of material facts not genuinely in dispute. In its order, or by separate opinion, the court shall recite the law and facts on which the summary adjudication is based.
"(b) Facts Not Genuinely In Dispute. A fact is not genuinely in dispute if it is stipulated or admitted by the parties who may be adversely affected thereby or if, on the basis of the relevant admissible evidence shown to be available for presentation at a trail, or the demonstrated lack thereof, and the burden of production or persuasion and standards applicable thereto, a party would be entitled at trial to a favorable judgment or determination with respect thereto as a matter of law under Rule 50.
"(c) Motion and Proceedings Thereon. A party may move for summary adjudication at any time after the other parties to be affected thereby have made an appearance in the case and have been afforded a reasonable opportunity to discover relevant evidence pertinent thereto that is not in their possession or under their control. Within 30 days after the motion is served, any other party may serve and file a response thereto.
"(1) Without argument, the motion shall (A) describe the claims, defenses, or issues as to which summary adjudication is warranted, specifying the judgment or determination sought; and (B) recite in separately numbered paragraphs the specific facts asserted to be not genuinely in dispute and on the basis of which the judgment or determination should be granted, citing the particular pages or paragraphs of stipulations, admissions, interrogatory answers depositions, documents affidavits, or other materials supporting those assertions.
"(2) Without argument, a response shall (A) state the extent, if any, to which the party agrees that summary adjudication is warranted, specifying with respect thereto the judgment or determination that should be entered; (B) indicate the extent to which the asserted facts recited in the motion are claimed to be false or in genuine dispute, citing the particular pages or paragraphs of any stipulations, admissions, interrogatory answers, depositions, documents, affidavits, or other materials supporting that contention; and (C) recite in separately numbered paragraphs any additional facts that preclude summary adjudication, citing the materials evidencing such facts. To the extent a party does not timely comply with clause (B) in challenging an asserted fact, it may be deemed to have admitted such fact.
"(3) If a motion for summary adjudication or response thereto is based to any extent on depositions, interrogatory answers, documents, affidavits, or other materials that have not been previously filed, the party shall append to its motion or response the pertinent portions of such materials. Only with leave of court may a party moving for summary adjudication supplement its supporting materials.
"(4) Arguments supporting a party's contentions as to the controlling law or the evidence respecting asserted facts shall be submitted by a separate memorandum at the time the party files its motion for summary adjudication or response thereto or at such other times as the court may permit or direct.
"(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court may make an order specifying the controlling law or the facts that are not genuinely in dispute, including the extent to which liability or the amount of damages or other relief is not a dispute for trial, and directing such further proceedings in the action as are just. Unless the order is modified by the court for good cause, the trial shall be conducted in accordance with the law so specified and by treating the facts so specified as established. An order that does not adjudicate all claims with respect to all parties may be entered as a final judgment to the extent permitted by Rule 54(b).
"(e) Matters to be Considered. In deciding whether an asserted fact is not genuinely in dispute, the court shall consider stipulations, admissions, and, to the extent filed, the following: (1) depositions, interrogatory answers, and affidavits to the extent such evidence would be admissible if the deponent, person answering the interrogatory, or affiant were testifying at trial and, with respect to an affidavit, if it affirmatively shows that the affiant would be competent to testify to the matters stated therein; and (2) documentary evidence to the extent such evidence would, if authenticated and shown to be an accurate copy of original documents, be admissible at trial in the light of other evidence. A party may rely upon its own pleadings, even if verified, only to the extent of allegations therein that are admitted by other parties. Notwithstanding the foregoing, the court is not required to consider evidentiary materials unless called to its attention pursuant to subdivision (c)(1) or (c)(2).
"(f) When Evidence Unavailable. Should it appear from the affidavits of a party opposing a motion for summary adjudication that the party cannot for good cause shown present materials needed to support that opposition, the court may deny the motion, may permit an offer of proof, may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
"(g) Conduct of Proceedings. The court (1) may preclude, or specify the period for filing, motions for summary adjudication with respect to particular claims, defenses, or issues; (2) may enlarge or shorten the time for responding to motions for summary adjudication, after considering the opportunity for discovery and the time reasonably needed to obtain or submit pertinent materials; (3) may on its own initiative direct the parties to show cause within a reasonable period why specified facts should not be treated as not genuinely in dispute and why summary adjudication bases thereon should not be entered; and (4) may conduct a hearing to consider further arguments, rule on the admissibility of evidence, or receive oral testimony to clarify whether an asserted fact is genuinely in dispute.
Committee notes.
Purpose of Revision.
This revision in intended to enhance the utility of the summary judgment procedure as a means to avoid the time and expense of discovery, preparation for trial, and trial itself as to matters that, considering the evidence to be presented and admitted at trial, can have but one outcome--while at the same time assuring that parties are not deprived of a fair opportunity to show that a trial is needed to resolve such matters.
The current caption, "Summary Judgment" is retained. However, the revised rule, like the former rule, also covers decisions that, by resolving only defenses or issues not dispositive of a claim, are more properly viewed as "summary determinations." The text of the revised rule adds language to clarify that it provides procedures for both types of "summary adjudications."
In various parts the revision (1) eliminates ambiguities and inconsistencies within the rule, (2) sets a single and consistent standard for determing when summary adjudication is appropriate, (3) establishes national procedures to facilitate fair consideration of motions for summary adjudication, and (4) addresses various gaps in the rule that have sometimes frustrated its intended purposes.
Subdivision (a).
This subdivision combines the provisions previously contained in subdivisions (a) and (b). It adds third-party claims to the list of claims subject to disposition by summary judgment, but deletes (as surplusage) the specific reference to declaratory judgments. The former provisions allowed motions for "summary judgment" as to "any part" of a claim; the revision permits summary determination of an "issue substantially affecting but not wholly dispositive" of a claim or defense--the point being that motions affecting only part of a claim or defense should not be filed unless summary adjudication would have some significant impact on discovery, trial, or settlement.
The revised language makes clear at the outset of the rule that summary adjudication--whether as summary judgment or as a summary determination of a defense or issue--is appropriate only when warranted as a matter of law, and not when it would involve deciding genuine factual disputes. When so warranted, the judgment or determination may be entered as to all affected parties, no just those who may have filed the motion or responses; when the court has concluded as the result of one motion that certain facts are not genuinely in dispute, there is no reason to require additional motions from other parties whose rights depend on those facts. As with the prior rule, elimination of trial through summary adjudication is not mandatory even when the standards of the rule are satisfied.
The court is directed to indicate the factual and legal basis if it grants summary judgment or summarily determines a defense or issue. A lengthy recital is not required, but a brief explanation is needed to inform the parties (and potentially an appellate court) what are the critical facts not in genuine dispute, on the basis of which summary adjudication is appropriate. The determination that a fact is not in genuine dispute is, when reviewed on appeal, treated as a question of law.
Subdivision (b).
The standards stated in this subdivision for determing whether a fact is genuinely in dispute are essentially those developed over time, culminating in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson V. Liberty Lobby, Inc., 477 U.S. 242 (1986). The rule clarifies that the obligation to consider only matters potentially admissible at trail applies not just to affidavits, but also to other evidentiary materials submitted in support of or opposition to summary adjudication. The rule adopts the standard prescribed in revised rule 50 for judgments as a matter of law (formerly known as directed verdicts) in jury trials to emphasize that, even in nonjury cases, the court is not permitted under Rule 56 to make credibility choices among conflicting items of evidence about which reasonable persons might disagree.
Subdivision (c).
Revised subdivision (c) provides a structure for presentation and consideration of motions for summary adjudication, and should displace in large part the numerous local rules spawned by deficiencies in the former rule. Adoption of this structure is not intended to create procedural pitfalls to deprive parties of trial with respect to facts in genuine dispute, but rather to provide a framework enabling the courts to discharge more effectively their responsibility in deciding whether such controversies exist.
A primary benefit of summary adjudication is elimination of ultimately wasteful discovery and other preparation for trial. For this reason, early filing of a motion for summary adjudication may be desirable in many cases. However, if a party will need to obtain evidence from other persons in order to show that a fact is in genuine dispute, it should have a reasonable opportunity for discovery respecting those matters before being confronted with a motion for summary judgment or summary determination. It should also have a sufficient time--ordinarily more than the 10 days specified in the prior rule--to marshal and present its evidentiary materials to the court. The times specified in the revised rule for filing motions for summary adjudication and responses to such motions incorporate these principles.
Paragraphs (1) and (2) prescribe a format for motions for summary adjudication and responses thereto. They are to be non-argumentative, for arguments are to be presented in separate memorandums under paragraph (4). They must be specific, particularly with respect to the facts asserted to be not in genuine dispute. They must provide a cross-reference to the specific portions of any evidentiary materials relied upon to support a contention that a fact is or is not in genuine dispute; failure to do so will, under revised subdivision (e), relieve the court of the obligation to consider such materials.
Pertinent portions of evidentiary materials not previously filed must be attached to the motion or response. As under the prior rule, a movant must obtain leave of court to supplement its supporting materials because such late filing may prejudice other parties or merit an extension of time for responses. The obligation to obtain leave of court applies only to evidentiary materials, and not to memorandums and arguments filed under paragraph (4).
The requirement that motions for summary adjudication contain cross-references to evidentiary materials and be accompanied by pertinent portions of such materials not previously filed is not, of course applicable when the movant contends that there is no admissible evidence to support a fact as to which another party has the burden of proof. In such situations the motion should recite that there is no such evidentiary support for that fact, and the opposing parties will have the obligation to cite and demonstrate in their responses the existence of such evidence.
A response to a motion for summary adjudication--formally recognized for the first time in this revision--can be filed by any party and can take several forms. In multiple-party cases a party similarly situated to the movant may merely wish to adopt the position of the movant in its response. The parties to be adversely affected by the judgment or determination sought in the motion may agree that the asserted facts, or some of them, are true but claim that, because of a different view regarding the controlling law, summary judgment or summary determination in their favor is warranted. Frequently, of course, the parties to be adversely affected by the judgment or determination sought in the motion will oppose the grant of any summary adjudication, either because of a different view of the law or because some of the asserted facts are believed to be false or at least in genuine dispute or because there are additional facts rendering the asserted facts not dispositive of the claim, defense, or issue. Subdivision (c)(2) is written to accommodate any of these possibilities. Of course, a party may also file a separate cross motion for summary adjudication if there are other facts asserted to be not in genuine dispute on the basis of which it is entitled to a favorable judgment or determination as a matter of law.
A party is not required to file a response to a summary adjudication motion. The failure to make a timely response, however, may be deemed an admission of the asserted facts specified in the motion (though not an admission as to the controlling law). If it contests an asserted fact specified in the motion either because it is false or at least in genuine dispute, the party must file a timely response that indicates the extent of disagreement with the movant's statement of the fact and provides reference to the evidentiary materials supporting its position. Failure to do so may result in the fact being deemed admitted for purposes of the pending action. As under Rule 36, if only a portion of an asserted fact (or the precise wording of the fact) is denied, the responding party must indicate the nature of the disagreement.
The substance of the last sentence of former subdivision (c), relating to partial summary judgments on issues of liability, has been incorporated into the revision of subdivision (d).
Subdivision (d).
The revision provides that, when a court denies summary adjudication in the form sought by a movant, if may--but is no longer required to--enter an order specifying which facts are thereafter to be treated as established. The revision also permits a court to enter rulings as to legal propositions to control further proceedings, subject to its power to modify the ruling for good cause. Finally, the revision makes explicit that "partial summary judgments" may be entered as final judgments to the extent permitted by Rule 54(b). Although not explicitly addressed in the rule, denial of summary adjudication is an interlocutory order not subject to the law-of-the-case doctrine; and the court is not precluded from reconsidering its ruling or considering a new motion, as may be appropriate for example because of developments in the case or changes of law.
Confusion was caused by the reference in the former provisions to a "hearing on the motion." While oral argument on a motion for summary adjudication is often desirable--and is explicitly authorized in subdivision (g)(4)--the court is not precluded from considering such motions solely on the basis of written submissions.
Subdivision (e).
Implementing the principle stated in subdivision (b) that the court should consider (in addition to facts stipulated or admitted) only matters that would be admissible at trial, this subdivision prescribes rules for determining the potential admissibility of materials submitted in support of or opposition to summary adjudiction. Facts are admitted for purposes of Rule 56 not only as provided in Rule 36, but also if stated, acknowledged, or conceded by a party in pleadings, motions, or briefs, or in statements when appearing before the court, as during a conference under Rule 16.
The admissibility of depositions, answers to interrogatories, and affidavits should be determined as if the deponent, person answering interrogatories, or affiant were testifying in person, with the proviso that an affidavit must affirmatively show that the affiant would be competent (e.g., have personal knowledge) to testify. For purposes of Rule 56 a declaration under penalty of perjury signed in the manner authorized by 28 U.S.C. § 1746 should be treated the same as a notarized affidavit.
Independent authentication of documentary evidence is not required--submission of the materials under the rule should be treated as sufficient authentication. Similarly, independent evidence that the materials submitted are accurate copies of the originals is not required. However, if other evidence would be required at trial to establish admissibility--such as the foundation for business records--the party presenting such records should provide the supporting evidence through deposition, interrogatory answers, or affidavits. Voluminous data should, as permitted under Federal Rules of Evidence 1006, be submitted by means of an affidavit summarizing the data and offering, if not previously provided, access to the underlying data.
The last sentence in revised subdivision (e) provides that the court is required to consider only the materials called to its attention by the parties. Subdivision (c)(1) and (c)(2) impose a duty on the litigants to identify support for their contentions regarding the evidence; this provision prevents a party from identifying a potential conflict in evidence for the first time on appeal.
Subdivision (f).
Extensions of time to oppose summary adjudication should be less frequent than under former rule because of new restrictions as to when such motions can be filed and the longer time allowed for the response. A request should be presented by an affidavit which, under the revised rule, must reflect good cause for the inability to comply with the stated time requirements. The revised rule also permits the court to accept an offer of proof where a party is unable to procure supporting materials that would satisfy the requirements of subdivision (e).
Subdivision (g).
The new provisions of subdivision (g) give explicit recognition to powers of the court in conducting proceedings to resolve motions under Rule 56 that were probably implicit prior to the revision.
Subdivision (g)(1) recognizes the power of the court to fix schedules for the filing of summary adjudications, or indeed even to direct that such motions not be filed with respect to particular claims, defenses, or issues.
At a scheduling conference the court may wish to consider establishing such a schedule to preclude premature or tardy motions and to focus early discovery on potentially dispositive matters.
Subdivision (g)(2) recognizes the court's power to change the time within which parties may respond to motions for summary judgment or summary determinations.
Depending on the circumstances, particularly the extent to which discovery has or has not been afforded or available, the extent to which the facts have been stipulated or admitted, and the imminence of trial, the 30-day period prescribed in subdivision (c) may be lengthened or shortened.
Subdivision (g)(3) permits the court to initiate an inquiry into the appropriateness of summary adjudication.
Such an inquiry may be initiated in an order setting a conference under Rule 16 or might arise as a result of discussions during such a conference. In any event, the parties should be afforded a reasonable opportunity to marshal and submit evidentiary materials if they assert facts are in genuine dispute and to present legal arguments bearing on the appropriateness of summary adjudication.
Subdivision (g)(4) addresses the power of the court to conduct hearings relating to summary adjudications.
One such purpose would be to hear oral arguments supplementing the written submissions. (Other portions of the revision to Rule 56 have eliminated the language that seemed to require such a hearing.) Another would be to make determinations under Federal Rule of Evidence 104(a) regarding the admissibility of materials submitted on a Rule 56 motion. A third purpose would be to hear testimony to clarify ambiguities in the submitted materials--for example, to clarify inconsistencies within a person's deposition or between an affidavit and the affiant's deposition testimony. In such circumstances, the evidentiray hearing is held not to allow credibility choices between conflicting evidence but simply to determine just what the person's testimony is. Explicit authorization for this type of evidentiary hearing is not intended to supplant the court's power to schedule separate trials under Rule 42(b) on issues that involve credibility and weight of evidence.
The former provisions of subdivision (g), providing sanctions when "affidavits. . .are presented in bad faith or solely for the purpose of delay," have been eliminated as unnecessary in view of the amendments to Rule 11. The provisions of revised Rule 11 apply not only to affidavits submitted under Rule 56 but also to motions, responses, briefs, and other supporting materials. Motions for summary adjudication should not be filed merely to "educate" the court or as a discovery device intended to flush out the evidence of an opposing party.