Summary judgment is a powerful tool — but only when the factual record is developed enough to support it. When a motion for summary judgment arrives before discovery is substantially complete, the non-moving party faces an unfair choice: oppose a motion without the evidence needed to contest it, or watch critical factual disputes get resolved against you on an incomplete record.

Utah Rule of Civil Procedure 56(d) addresses this problem directly. It gives the non-moving party the right to ask the court to defer ruling on a summary judgment motion until specific additional discovery can be conducted. Used correctly, it is one of the most effective tools for managing premature MSJ practice. Used vaguely, it accomplishes nothing.

This post explains what Rule 56(d) requires, how to invoke it properly, and how this procedure connects to the appeal that may follow.

The Problem: Summary Judgment Before Discovery Is Complete

Under URCP Rule 56(b), a motion for summary judgment may be filed at any time no later than 28 days after the close of all discovery — unless the court’s scheduling order sets an earlier deadline. This means a party can file an MSJ early in the case, before depositions are taken, before documents are produced, before expert reports are completed.

Early MSJ filings are sometimes a legitimate tactic — moving quickly on an issue where the record is already one-sided. But they are also used strategically to put the opposing party in an impossible position: oppose now, before you have the evidence you need, or concede that the undeveloped record supports the movant’s position.

The non-moving party’s response without adequate discovery is often thin — because the evidence that would create genuine disputes has not yet been produced. Depositions not yet taken. Documents not yet reviewed. Expert analysis not yet completed. The non-moving party knows the evidence exists; the record just does not reflect it yet.

What Rule 56(d) Allows

URCP Rule 56(d) provides that if a non-moving party shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

Defer consideration of the motion or deny it
Allow time to obtain affidavits or declarations or to take discovery
Issue any other appropriate order

This is a meaningful protection, not a procedural technicality. The rule recognizes that summary judgment should be decided on a fully developed record — and that granting it on a record deliberately made thin by premature filing would defeat the purpose of discovery.

What Rule 56(d) Requires: A Specific Showing

Rule 56(d) is not a general license to request more time. Courts deny vague or conclusory Rule 56(d) motions routinely. To succeed, the affidavit or declaration supporting the motion must:

1. Identify the specific discovery needed. Not “additional discovery generally” or “ongoing depositions.” Specifically: which witnesses need to be deposed, which documents need to be produced, which expert opinions need to be obtained.

2. Explain why the discovery has not been obtained. Was it not yet scheduled? Has the movant not yet responded to discovery requests? Has the deadline for producing documents not yet passed? Courts want to understand why the specific discovery does not yet exist.

3. Describe how the specific discovery is likely to produce facts creating a genuine dispute. This is the most demanding element. You must explain the connection: “The deposition of [witness] is likely to produce testimony establishing [specific fact], which would create a genuine dispute over [specific element of the claim].” Generic assertions that more discovery might uncover something helpful are insufficient.

4. Show diligence. Rule 56(d) is not a remedy for parties who have been slow to pursue discovery. You must show that you have been pursuing discovery with reasonable diligence and that the missing discovery is not the product of your own delay.

RULE 56(d) AFFIDAVIT REQUIREMENTS

To obtain a deferral, the supporting affidavit or declaration must:

Identify the specific discovery needed (not discovery generally)

Explain why it has not been obtained

Describe how it will likely produce facts creating a genuine dispute

Demonstrate that the non-moving party has been diligent in pursuing discovery

Vague requests for more time without this specific showing will be denied.

What Happens When Rule 56(d) Is Granted

If the court grants a Rule 56(d) request, it typically:

Defers ruling on the summary judgment motion pending completion of the specified discovery
Sets a new briefing schedule for a supplemental opposition after the additional discovery is obtained
May limit the additional discovery to the specific topics identified in the affidavit

The motion is not denied outright — it is held in abeyance. When the specified discovery is complete, the non-moving party files its supplemental opposition, the movant replies, and the court then rules on the fully developed record.

This outcome is exactly what Rule 56(d) is designed to produce: a summary judgment decision made on a record that actually reflects what the evidence shows, not what has been produced by an artificially early motion.

What Happens When Rule 56(d) Is Denied

If the court denies the Rule 56(d) request and proceeds to rule on the MSJ, the non-moving party faces summary judgment on whatever record exists. This does not mean the non-moving party loses — the movant still has to meet its initial burden, and if the existing record creates genuine disputes on material facts, the motion should be denied even without additional discovery.

But a denied Rule 56(d) request sets up a significant appellate issue if summary judgment is subsequently granted. The denial itself is reviewable: if the appellate court concludes the trial court abused its discretion in denying the Rule 56(d) request — because the affidavit adequately identified specific discovery likely to create genuine disputes, and the denial forced the non-moving party to oppose on an artificially thin record — it may reverse both the Rule 56(d) ruling and the summary judgment ruling that followed.

This creates an important strategic point: even if you believe Rule 56(d) will be denied, filing a specific, well-supported Rule 56(d) affidavit creates an appellate issue that can provide a path to reversal if summary judgment is granted. The quality of the affidavit matters at both the trial court and appellate level.

Rule 56(d) and the Discovery Tier System

Utah’s discovery tier system under URCP Rule 26 assigns cases to Tier 1, Tier 2, or Tier 3 based on the amount in controversy. Each tier has different discovery limits — number of depositions, document requests, and interrogatories. Tier 1 cases (typically under $50,000) have the most compressed discovery.

In Tier 1 cases, the compressed discovery timeline makes premature summary judgment filings more common and more harmful — because the discovery limits mean the non-moving party has fewer available tools to develop the record quickly. Rule 56(d) is particularly important in these cases: if a movant files an MSJ before the limited Tier 1 discovery is complete, the Rule 56(d) mechanism is often the only way to ensure the record reflects the evidence that exists.

When drafting a Rule 56(d) affidavit in a tiered-discovery case, identify specifically which of the tier’s discovery allowances remain unused and how they are expected to produce the necessary evidence.

The Connection to Appellate Review

If Rule 56(d) is denied and summary judgment is subsequently granted, the appellate court reviews the Rule 56(d) denial for abuse of discretion — a more deferential standard than the de novo review that governs the summary judgment ruling itself. But the two rulings are interconnected: if the Rule 56(d) denial was an abuse of discretion, the summary judgment ruling built on the artificially truncated record may also need to be reversed.

Courts on appeal look at whether the Rule 56(d) affidavit was specific and credible — whether it identified particular discovery, explained why it was missing, and described a plausible connection between that discovery and genuine factual disputes. Generic, speculative affidavits do not survive abuse-of-discretion review; specific, record-grounded ones create a viable appellate argument.

For the full appellate process following an adverse MSJ ruling, see our post on appealing summary judgment in Utah.

KEY RULE

URCP Rule 56(d) — Deferral Pending Additional Discovery

If a non-moving party cannot present facts essential to its opposition because specific necessary discovery has not been obtained, it may file an affidavit or declaration under URCP Rule 56(d) identifying: (1) the specific discovery needed, (2) why it has not been obtained, (3) how it is likely to produce facts creating a genuine dispute, and (4) that the party has been diligent in pursuing discovery. Vague requests for more time are denied. If granted, the court defers ruling pending the specified discovery. If denied, the denial creates an appellate issue reviewable for abuse of discretion — and a specific, credible affidavit strengthens that appeal.

If a Summary Judgment Motion Has Arrived Before Discovery Is Complete

The time to evaluate Rule 56(d) is now — not after you have filed a thin opposition. Lotus Appellate Law works with Utah litigants and trial counsel on summary judgment strategy, Rule 56(d) proceedings, and the appeals that follow. Contact us to assess whether a Rule 56(d) affidavit is the right response.

Lotus Appellate Law — Motions for Summary Judgment Evaluation
An adverse summary judgment ruling is not always the end of the road. Utah appellate courts review summary judgment de novo — with no deference to the trial court — making it one of the most reversible rulings in civil litigation. Lotus Appellate Law handles Utah civil appeals at the Court of Appeals and Supreme Court level. Reach out to schedule a consultation.

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Rule 56(d) in Utah: How to Defeat a Premature Summary Judgment Motion