Wondering if discovery is required before filing a motion for summary judgment? Learn when discovery is necessary, what Rule 56(d) means, and how timing affects your chances of success.

Do You Need Discovery Before Filing a Motion for Summary Judgment?

Introduction

The motion for summary judgment (MSJ) is one of the most powerful litigation tools available in civil court. It can lead to a case—or part of a case—being resolved without trial. But timing is everything. One of the most common strategic questions is: Do you need to complete discovery before filing a motion for summary judgment?

The short answer: not always—but usually, yes. Courts require parties to support MSJs with admissible evidence, and most of that evidence comes through discovery. Filing prematurely can result in procedural delays, denials under Rule 56(d), or a weak case presentation.

In this article, we’ll walk through why discovery matters, what happens if it’s incomplete, and how to file a motion for summary judgment at the right time.

If you need help drafting your MSJ or planning the timing of your filing, Legal Husk provides expert legal drafting services at legalhusk.com and legalhusk.com/services/civil-litigation.

Understanding Summary Judgment and Evidence Requirements

A motion for summary judgment asks the court to rule on part or all of a case without a trial by showing:

• There is no genuine dispute of material fact.
• The moving party is entitled to judgment as a matter of law.

To prove this, the movant must rely on:

• Affidavits or declarations
• Discovery materials (depositions, interrogatory responses, documents)
• Pleadings and admissions
• Evidence that would be admissible at trial

Most of this supporting material is only available after completing at least some discovery.

Why Discovery Is Usually Necessary Before Filing

1. You Need a Complete Record to Win

Summary judgment decisions are evidence-based. Filing early limits your ability to:

• Show key facts are undisputed
• Prove your legal position with documentation
• Discredit the opposing party’s version of events

2. You Must Anticipate the Opponent’s Arguments

Discovery helps you:

• Understand the other side’s defenses or claims
• Anticipate their objections to your facts
• Find admissions or inconsistencies in their testimony

3. Courts Expect It

Judges are more likely to grant summary judgment when:

• The record is complete
• The parties have had a fair chance to conduct discovery
• There’s clear evidentiary support, not speculation

When Can You File Before Discovery Is Complete?

There are limited circumstances where early MSJs can be effective:

1. Legal Issues Only

If the motion turns entirely on legal interpretation and not factual disputes, discovery may not be necessary. Example:

• Challenging standing or jurisdiction
• Asserting that a statute of limitations expired

2. Opposing Party’s Pleadings Are Insufficient

You may file early if the pleadings themselves show the claims lack merit. However, courts typically prefer Rule 12 motions (e.g., motion to dismiss) for these arguments.

3. Both Parties Agree on the Facts

In rare cases, both sides agree on key facts and only disagree on the law. Filing early may help streamline the case.

Understanding Rule 56(d): What Happens If You File Too Soon?

If you file a motion for summary judgment before the opposing party has completed discovery, they can respond with a Rule 56(d) motion (formerly Rule 56(f)) asking the court to:

• Delay ruling on the MSJ
• Deny the motion
• Allow further discovery

To succeed, the opposing party must:

• Explain why they cannot present facts to oppose the MSJ
• Specify the discovery they need
• Show how the facts would affect the case

If granted, your MSJ may be denied or deferred, and you’ll lose credibility for filing prematurely.

How to Strategically Time Your MSJ Filing

1. Track Discovery Milestones

Wait until you’ve obtained:

• Key depositions
• Document production
• Written discovery responses

2. Analyze the Opposition’s Case Weaknesses

Look for:

• Missing evidence
• Contradictions in their claims
• Gaps in their proof

3. Follow the Court’s Scheduling Order

There’s often a deadline for dispositive motions. Make sure you:

• Don’t file before discovery is authorized
• Don’t file after the deadline has passed

4. Consider a Partial Motion

If only some issues are ready, file for partial summary judgment. This narrows trial scope and strengthens your position.

Tips for Filing a Strong Motion After Discovery

• Include a detailed statement of undisputed material facts with citations
• Use admissible evidence from depositions, interrogatories, and records
• Attach properly formatted and authenticated exhibits
• Anticipate opposing counsel’s counterarguments
• File a reply brief if allowed to address any opposition

Mistakes to Avoid

• Filing before the discovery deadline
• Using hearsay or unauthenticated documents
• Assuming early filing gives you an advantage
• Ignoring Rule 56(d) objections

How Legal Husk Can Help You File at the Right Time

At Legal Husk, we help plaintiffs and defendants file strategically timed and professionally crafted motions for summary judgment. Our services include:

• Custom-drafted MSJs based on your evidence and jurisdiction
• Statements of undisputed material facts
• Exhibits, affidavits, and declarations
• Legal briefs aligned with court rules and deadlines

You can purchase litigation-ready documents and services at:

• legalhusk.com
• legalhusk.com/services
• legalhusk.com/about-us
• legalhusk.com/services/civil-litigation

Final Thoughts

Filing a motion for summary judgment before completing discovery is a gamble. In most cases, discovery provides the evidence you need to win—or at least to present a credible case. While early motions may be appropriate in limited legal scenarios, strategic timing aligned with strong evidentiary support offers the best chance for success.

📩 Need help drafting a strong, properly timed motion for summary judgment? Visit Legal Husk today to purchase expert legal drafting services and protect your position in court.