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

Client Alert | 1 min read | 06.04.08

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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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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