SUMMARY JUDGMENT UNDER THE FEDERAL RULES WHEN AN ISSUE OF FACT IS PRESENTED

Rule 56 of the Federal Rules of Civil Procedure introduced to federal practice the summary judgment procedure, which had been developed previously in England and several of the states. The scope of rule 56 is the broadest possible, since the rule provides that any party may move for a summary judgment in any type of civil action. Rule 56(c) provides that the court shall grant a motion for summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It is clear from this provision that the movant in order to obtain a summary judgment must show: (1) that there is no genuine issue as to any material fact in the case, and (2) that he is entitled to a judgment in his favor as a matter of law. The second of these requirements has not caused much difficulty; here generally the courts have borrowed a test with which they are familiar, holding that the movant to obtain summary judgment must show that he would be entitled to a directed verdict at trial (if the case were tried to a jury) on the basis of the undisputed facts. It is rather the first of these two requirements which has caused conflict and uncertainty

Scope of Discovery Against the United States

In the interpretation and application of the discovery provisions of the Federal Rules of Civil Procedure, one of the most controversial problems is the extent to which discovery is available against the United States when it is a party to an action. Undeniably, the Government is entitled to use the discovery procedures, and it has not hesitated to do so; however, it has often fought vigorously the use of the same procedures against it. At one time the Government argued unsuccessfully that it was entirely exempt from the discovery provisions of the Rules. It has apparently abandoned this argument, but it continues to fight discovery by urging not only its well-recognized evidentiary privileges, but also an all inclusive privilege which, it contends, executive officers alone can apply. In answer to claims of this latter privilege, the courts have gone in all directions, often assuming or inventing such a privilege, and sometimes even applying it, but more frequently finding a way to avoid it. The purpose of this article is to discuss the unique problems arising as to discovery against the United States as a party litigant. The discussion does not cover the situation where discovery is sought against the United States although it is not a party. Nor does it cover the usual problems which are presented in seeking discovery against any private litigant and which are, of course, also present when the United States is involved. The subject to be discussed can be divided into three parts: (1) whether the United States is subject to discovery; (2) whether there are any special privileges available to it which are not available to an ordinary litigant; and (3) to the extent that there are such special privileges, who decides their application

SUMMARY JUDGMENT UNDER THE FEDERAL RULES WHEN AN ISSUE OF FACT IS PRESENTED

Rule 56 of the Federal Rules of Civil Procedure introduced to federal practice the summary judgment procedure, which had been developed previously in England and several of the states. The scope of rule 56 is the broadest possible, since the rule provides that any party may move for a summary judgment in any type of civil action. Rule 56(c) provides that the court shall grant a motion for summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. It is clear from this provision that the movant in order to obtain a summary judgment must show: (1) that there is no genuine issue as to any material fact in the case, and (2) that he is entitled to a judgment in his favor as a matter of law. The second of these requirements has not caused much difficulty; here generally the courts have borrowed a test with which they are familiar, holding that the movant to obtain summary judgment must show that he would be entitled to a directed verdict at trial (if the case were tried to a jury) on the basis of the undisputed facts. It is rather the first of these two requirements which has caused conflict and uncertainty