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Strict Showing of Necessity And Diligence to Oppose Summary Judgment is Not Required Without Adequate Initial Opportunity For Discovery


In Metro. Life Ins. Co. v. Bancorp Servs. L.L.C., (No. 07-1312), the Federal Circuit vacates a district court’s judgment of noninfringement and remands for further proceedings. Before the district court, the plaintiff-appellee moved for summary judgment of noninfringement supported by affidavits declaring that a particular claim limitation was not performed by the allegedly-infringing system. In response, the defendant-appellants filed a Rule 56(f) motion requesting discovery of various documents, and that depositions be taken of the declarants of the relied-on affidavits. In denying the Rule 56(f) motion, the district court reasoned that the defendant-appellants had not shown the declarants would contradict their declarations if deposed and had not shown that additional document discovery would lead to relevant evidence of infringement in light of the affidavits.

However, the Federal Circuit finds that when, as in this case, there has been no adequate initial opportunity for discovery, a strict showing of necessity and diligence that is otherwise required for a Rule 56(f) request for additional discovery, does not apply. The Federal Circuit finds that the defendant-appellants were not afforded adequate time for general discovery before being required to respond to the motion for summary judgment and, as such, vacates the district court’s judgment of noninfringement and remands to allow for additional discovery.


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Mark Supko
Partner – Washington, D.C.
Phone: +1 202.624.2734

Jonathan M. Lindsay
Partner – Orange County
Phone: +1 949.263.8400