A Rule 56(d) discovery extension is the mechanism that lets you pause a summary judgment motion when you haven’t yet had a fair chance to gather the evidence you need to oppose it. You file an affidavit or declaration identifying the specific facts that are missing, explaining why you can’t present them, and showing what you’ve done to try. If the court credits the showing, it can defer ruling on the motion, open a limited discovery window, or issue any other order it considers appropriate.1Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment Get the filing right and you buy yourself the discovery you need. Get it wrong, or skip it, and summary judgment can enter against you on an incomplete record.
What the Declaration Has to Say
The rule requires “specified reasons,” not generalities.1Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment A declaration that says “we need more time” gets denied. The filing has to walk the court through five things.
The missing facts. Identify the specific evidence you don’t have. Name the documents, the witness, or the data. If internal emails between two executives would show the defendant knew about a product defect, say so. If payroll records would establish you were misclassified as an independent contractor, spell that out.
Why you can’t present them now. Explain what is blocking you. A witness is refusing to sit for a deposition. The opposing party has not responded to document requests. The specific obstacle has to be in the declaration.
Where you believe the evidence is. Point the court to a particular server, a personnel file, or the personal knowledge of a named individual. This is what separates a credible request from speculation.
How it connects to the motion. Draw a direct line between what’s missing and the arguments the moving party raised. If the motion claims there is no evidence of negligence, explain that maintenance logs from the relevant period would show a pattern of ignored safety complaints.
What you have already done to get it. Describe your discovery efforts, with dates of document requests, interrogatories served, and meet-and-confer sessions with opposing counsel. Judges are far more sympathetic when you can show the delay is not your fault.
The underlying message you need the judge to accept is that this evidence exists, it is relevant enough to create a genuine factual dispute, and you have been diligent. Saying more discovery “might turn up something useful” doesn’t clear the bar. You need concrete reasons to think the evidence is out there, such as references in other documents or testimony that alludes to records you haven’t received.
You Don’t Need a Notarized Affidavit
The rule says “affidavit or declaration,” and many litigants assume they need a notary. Under 28 U.S.C. § 1746, an unsworn written declaration signed under penalty of perjury carries the same legal weight as a sworn affidavit in any federal proceeding.2Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury The declaration just needs to be dated, signed, and include language substantially like: “I declare under penalty of perjury that the foregoing is true and correct.” That is the approach most practitioners use. The attorney handling the case usually signs, since the attorney is the one who knows what discovery has been pursued and what remains outstanding. A party or witness with direct knowledge of the missing evidence may sign instead when that person is better positioned to explain the unavailability. Whoever signs is making statements under penalty of perjury.
When to File
Rule 56(d) doesn’t mandate a particular format. Some courts accept the declaration filed alongside the opposition brief; others prefer a standalone motion. Local rules and the scheduling order control, so check both.
Timing is where parties trip up. File the 56(d) request before your opposition deadline expires. The 2010 Committee Notes contemplate that a party seeking Rule 56(d) relief may ask the court to defer the deadline for responding to the summary judgment motion itself. If summary judgment lands before your responsive pleading is even due, the default rule gives you 21 days after that responsive pleading deadline to respond.1Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment Local rules and scheduling orders frequently override these defaults, so verify your actual deadlines early. Serve the filing on all opposing parties through the court’s electronic filing system or whatever method the court requires.
What the Court Weighs
Two factors dominate: materiality and diligence.
Materiality
The missing evidence has to matter. It needs to be capable of creating a genuine dispute about a material fact. If what you are after would only confirm something already in the record, or would provide background that doesn’t bear on the legal elements at issue, the court will deny. The connection has to be direct: this specific evidence, applied to this specific argument in the motion, could change the outcome.
Diligence
Judges look hard at whether you could have gotten the evidence earlier. A party who had months to serve subpoenas and take depositions and simply didn’t will struggle to convince a court that more time is warranted. If the delay stems from the opposing party’s obstruction or from the inherent complexity of the case, that’s a different story. Speculative requests get rejected quickly. Compare “we believe discovery might reveal something” against “the defendant’s former operations manager testified in a related proceeding that weekly inspection reports exist, but defendant has not produced them despite our October request.” The second gives the judge something concrete to act on.
What the Court Can Do
Discretion here is broad. The judge may defer ruling on the summary judgment motion entirely, open a limited window for the specific discovery identified in the declaration, or issue any other order the court considers appropriate.1Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment In practice, courts that grant relief often set a defined discovery period focused narrowly on the issues raised in the declaration, then reset the briefing schedule once that discovery closes.
The court can also deny outright, forcing you to oppose the motion with whatever evidence you have. That is where a weak declaration costs you. If you failed to specify what you need or explain why you don’t have it, the court has no basis for giving you more time.
Why Skipping the Filing Is Fatal
This is the trap. If you oppose summary judgment and lose without ever filing a 56(d) affidavit or declaration, you have likely waived the argument that you needed more discovery. On appeal, courts review 56(d) rulings for abuse of discretion, and it is extremely difficult to argue the trial court abused its discretion over a request you never made. The formal filing is what preserves the issue. Complaining about insufficient discovery in your opposition brief, without the required declaration, usually isn’t enough.
So the practical rule is simple. If you are facing summary judgment and you genuinely need more evidence, file the declaration. Even if the court denies it, you have created a record an appellate court can review. Without that record, you are stuck with the result.
Bad Faith and Rule 56(h)
The declaration is not a cost-free delay tactic. Under Rule 56(h), if the court determines that an affidavit or declaration was submitted in bad faith or purely to delay the case, it can order the filing party to pay the opposing side’s reasonable expenses, including attorney’s fees. The court must give notice and a reasonable time to respond before imposing these penalties. A party or attorney responsible for a bad faith filing may also be held in contempt.1Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment If you claim you need discovery that you have already received, or invent reasons for the delay, you are exposing yourself and your attorney to sanctions. Keep the declaration honest and precise.
Costs
Filing the declaration itself costs nothing beyond attorney time, especially if you use an unsworn declaration under 28 U.S.C. § 1746 rather than a notarized affidavit.2Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury Notary fees, if you go that route, vary by state and generally run between $2 and $25 per act, with some states setting no maximum.
The real expense comes from the discovery that follows. Depositions require a court reporter, whose appearance and transcript fees add up quickly. Private process server fees for a reluctant witness typically run from roughly $35 to over $200 depending on location, complexity, and urgency. Budget for these early, because a granted 56(d) motion puts you on a tight timeline to complete the discovery you asked for.