May 25, 1994      UNITED STATES COURT OF APPEALS

                      FOR THE FIRST CIRCUIT

                                             

Nos. 93-1932
     93-2001

                  RESOLUTION TRUST CORPORATION,

                       Plaintiff, Appellee,

                                v.

              NORTH BRIDGE ASSOCIATES, INC., ET AL.,

                     Defendants, Appellants.

                                             

                           ERRATA SHEET

     The order of the court issued on May 2, 1994 is corrected as
follows:

     On page 4,  line 4, change December 2, 1990  to December 20,
1990.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

Nos. 93-1932
     93-2001

                  RESOLUTION TRUST CORPORATION,
                       Plaintiff, Appellee,

                                v.

              NORTH BRIDGE ASSOCIATES, INC., ET AL.,
                     Defendants, Appellants.

                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Edward F. Harrington, U.S. District Judge]
                                                        

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Bownes, Senior Circuit Judge,
                                              

                    and Stahl, Circuit Judge.
                                            

                                             

     Peter S. Brooks, with whom Brooks &amp; Lupan was on  brief, for
                                              
appellants.
     Joseph F.  Shea, with whom  Michael P. Condon,  Sheila Kraft
                                                                 
Budoff, Paul R. Gupta and Nutter, McClennen &amp; Fish were on brief,
                                                  
for appellee.

                                             

                           May 2, 1994

                                             

          SELYA, Circuit Judge.  In one corner, the plaintiff,  a
          SELYA, Circuit Judge.
                              

government agency, having won  by a knockout in the  court below,

asserts that this is a case about defendants who demand their own

timetable for  pretrial discovery  and motion  practice.  In  the

other corner, a group of defendants, having been laid low by what

they claim was  a rabbit punch, assert that this  is a case about

the  government flouting  court-imposed deadlines  and procedural

rules.    After  reconstructing  the  chronology  of  events,  we

conclude that the defendants are  substantially correct.  We also

conclude that the  district court, instead  of hurrying to  grant

summary judgment, should have held the government accountable for

the  lack  of  punctual  discovery  and  given  the  government's

litigation  adversaries  a fair  opportunity  to formulate  their

opposition.

I.  THE VIEW FROM RINGSIDE

          At  the height  of a  boom market  in real  estate, two

neophytes,  Ralph H. Scott, II, a physician, and his wife, Betty,

decided to  build a  large, expensive residential  subdivision on

the  picturesque  island  of  Martha's  Vineyard.    In  order to

proceed, Dr.  and Mrs. Scott  formed a corporation,  North Bridge

Associates,  Inc.    The   Scotts  and  North  Bridge  Associates

(collectively, "borrowers" or "appellants")  then executed a note

in favor of  ComFed Savings Bank ("ComFed" or  "the bank") in the

amount  of $2,995,000.  The borrowers closed the loan on November

25,  1987,  securing  it  by  a  mortgage  on  the  North  Bridge

subdivision.   They also  executed a construction  loan agreement

                                3

that  specified when and how the bank would disburse the borrowed

funds.

          The   venture   experienced   several  setbacks.      A

particularly vexing problem involved abutting property owners who

eventually  served a  lis  pendens asserting  that title  defects
                                  

invalidated easements  essential to the  subdivision's viability.

At this  delicate juncture, the bank  shut off the  flow of funds

and  construction ground  to a  halt.   When the  promissory note

matured on November 25,  1988, the borrowers failed to  repay the

outstanding   balance.     In  a   last-ditch  effort   to  avert

foreclosure, they  capitulated to ComFed's  demands.  As  part of

the  tribute  that ComFed  exacted  for  deferring the  repayment

obligation, the  borrowers  signed  an  extension  agreement  and

general  release   surrendering   all  potential   defenses   and

counterclaims.1

          The loan remained  unpaid at the  end of the  extension

period.   The  bank then  sued the  borrowers in  a Massachusetts

state court.  The borrowers answered and counterclaimed alleging,

inter alia,  that ComFed  had  broken its  promises, violated  an
          

implied  covenant of  good  faith and  fair dealing,  disregarded

fiduciary   responsibilities,   and    engaged   in    fraudulent

misrepresentation.   They also asked  the court to  set aside the

                    

     1In  the extension agreement, the borrowers represented that
"no defenses, offsets, or counterclaims exist to the full payment
of  such  indebtedness in  accordance with  its  terms."   In the
general release, they purposed  to discharge ComFed "of  and from
any  and all  debts,  demands, action,  causes of  action, suits,
accounts, covenants,  and damages which  North Bridge Associates,
Inc. or its officers . . . may have or ever had . . . ."

                                4

extension agreement and general release on grounds of duress.

          Inasmuch  as  procedural  tussles  have  dominated  the

course  of this litigation,  we deem  it prudent  to set  forth a

detailed chronology  of relevant events occurring  from and after

the  time  that the  parties  joined  issue.    In doing  so,  we

eliminate  many  matters unimportant  to  our  resolution of  the

issues on appeal.2

          1.   December 20, 1990.   The borrowers serve
          1.   December 20, 1990.
          interrogatories  and  a request  for document
          production.    In compliance  with applicable
          procedural  rules, see Fed. R. Civ. P. 34(b),
                                
          the request sets a reasonable  time and place
          for production, specifying that the documents
          shall  be  produced  within  30  days at  the
          offices of the borrowers' lawyers.

          2.   January  23, 1991.   Following  ComFed's
          2.   January  23, 1991.
          failure,  the  Resolution  Trust  Corporation
          ("RTC"), having been appointed as conservator
          (and  soon  to  be  appointed  receiver),  is
          substituted  as the  party plaintiff  and, on
          April  1, 1991,  removes  the  action to  the
          federal district court.

          3.  April 16, 1991.  Over three  months after
          3.  April 16, 1991.

                    

     2At the  time the  borrowers initiated discovery,  the state
court had  jurisdiction and, accordingly, the  borrowers' initial
discovery requests  were governed when made  by the Massachusetts
Rules  of Civil Procedure.   The action  was soon  removed to the
federal  district court.  See  Chronology, infra, at  No.2.  This
                                                
procedural wrinkle has  no effect on  our ensuing discussion  for
two  reasons.   First, removed  cases are  governed fully  by the
Federal  Rules, and are treated  no differently than  if they had
originated in  a federal forum.   See Fed. R. Civ.  P. 81(c); see
                                                                 
also Granny  Goose Foods, Inc.  v. Brotherhood of  Teamsters, 415
                                                            
U.S. 423,  438  (1974).   Second,  the state's  procedural  rules
parallel   their   federal   counterparts   in   their   relevant
particulars.  See, e.g.,  Mass. R. Civ. P. 34(b)  (directing that
                       
requests  for  document  production "specify  a  reasonable time,
place, and manner  of making  the inspection  and performing  the
related  acts"); Mass. R. Civ. P. 33(a) (allotting 45 days within
which to answer interrogatories).  For simplicity's sake, we cite
only to the Federal Rules.

                                5

          the date on  which the plaintiff's  discovery
          responses  were  due,   RTC  takes  a  first,
          tentative step toward responding:   it offers
          to  produce  the  described   documents,  but
          attempts unilaterally  to amend the  time and
          place  for  production.    No  documents  are
          received and nothing is said with  respect to
          the  answers   to  interrogatories  although,
          under the Federal Rules, the answers were due
          within 30  days of service, see  Fed. R. Civ.
                                         
          P. 33(b)(3).

          4.  May 26, 1992.  After thirteen more months
          4.  May 26, 1992.
          without  incident or action  of any kind, the
          district  judge  holds  a status  conference.
          RTC   agrees   to  provide   all  outstanding
          discovery "promptly."

          5.   February  22, 1993.   RTC  fritters away
          5.   February  22, 1993.
          another nine  months.  Eventually,  the judge
          convenes  a second  status conference.   This
          time,  RTC  comes  armed with  a  motion  for
          partial summary  judgment ("the SJM").3   The
          judge   orders   all  outstanding   discovery
          obligations  honored  by  March  24,  at  the
          latest.

          6.  March 2,  1993.  As no progress  has been
          6.  March 2,  1993.
          made  toward  completion  of  discovery,  the
          borrowers file the first of three motions for
          enlargement  of  the  time  within  which  to
          oppose the  SJM.   The  borrowers' motion  is
          accompanied   by   an  attorney's   affidavit
          detailing  the  history  of  the  action  and
          noting  that, more than  two years after they
          should   have   been   delivered,   discovery
          materials are still in the pipeline.

          7.    March  18,  1993.    RTC  notifies  the
          7.    March  18,  1993.
          borrowers   that   it   has   gathered   some
          responsive documents, and  suggests that  the
          parties agree upon a mutually convenient time
          to review them.

          8.   March 25,  1993.  Over  RTC's objection,
          8.   March 25,  1993.

                    

     3The SJM addressed  only count  1 of the  complaint and  the
borrowers'   several  counterclaims.     The  remainder   of  the
complaint,  dealing principally  with RTC's  effort to  reach and
apply  assets standing  in  the name  of  a related  third  party
(himself a defendant), remains pending in the district court.

                                6

          the  district  court  grants  the  borrowers'
          motion and extends the time for opposing  the
          SJM to April 16, 1993.

          9.   April 2, 1993.   The interrogatories are
          9.   April 2, 1993.
          finally answered and, on  the same date,  the
          borrowers'  attorneys  review  the  documents
          that RTC has made  available at its counsel's
          offices.

          10.   April 9, 1993.   Some of  the documents
          10.   April 9, 1993.
          originally  requested  on  December 2,  1990,
          amounting to  over 2,000  pages, are at  long
          last   delivered  to   the  offices   of  the
          borrowers'  lawyers,  Peter and  Cathy Brooks
          (who are husband and wife).  On the same day,
          however,   the   Brooks'   infant    son   is
          hospitalized and placed in an  intensive care
          unit.  He remains there,  initially, for nine
          days, and is readmitted  on April 20.    Upon
          discharge  three days later,  he continues to
          require special attention.

          11.   April 12,  1993.  The  borrowers file a
          11.   April 12,  1993.
          motion   in  which  they  request  a  further
          enlargement of time until May 14, 1993.  This
          motion  is not  accompanied by  an affidavit,
          but,  in  an  accompanying memorandum,  Peter
          Brooks (who authored the affidavit in support
          of the first extension motion)  describes the
          medical  emergency and informs the court that
          the  borrowers  cannot intelligently  address
          the SJM  until they  have time to  review the
          compendious discovery materials produced only
          a few days earlier.

          12.   May 20,  1993.  The  borrowers conclude
          12.   May 20,  1993.
          their document review  and find the documents
          produced  to  be  incomplete and  inadequate.
          They  write  to   RTC's  counsel   specifying
          seventeen missing categories of documents and
          soliciting  a conference  to reduce  areas of
          potential   controversy.4       The   ensuing

                    

     4The  letter  implicates  a  local  rule  that  provides  in
pertinent part:

          Before filing any discovery motion, including
          any motion  for sanctions . .  ., counsel for
          each  of the  parties  shall confer  in  good
          faith to narrow the  areas of disagreement to

                                7

          discussion between the  parties engenders  no
          results.

          13.  May 24, 1993.   The borrowers file their
          13.  May 24, 1993.
          third motion for an extension, accompanied by
          an affidavit from Cathy Brooks rehearsing the
          latest developments, stating her  belief that
          the  documents  withheld  exist, and  opining
          that   those   papers,   if  produced,   will
          illuminate   genuine   disputes    concerning
          material facts.

          14.  June  15, 1993.   The borrowers move  to
          14.  June  15, 1993.
          compel   production    of   the   undisclosed
          documents.

          15.  July 20, 1993.  Without giving notice or
          15.  July 20, 1993.
          holding a hearing, the district  judge grants
          the  SJM, rejects  the borrowers'  second and
          third  extension  motions,  and   denies  the
          motion  to  compel.    The  court  offers  no
          meaningful   explanation   for  any   of  its
          rulings.   In due course,  the court  invokes
          Fed. R. Civ. P. 54(b) and enters judgment.

          The  borrowers appeal.5    They assert  that the  lower

court  erred:    in  denying  their  second  and  third extension

motions;  in   taking  up   the  SJM  while   discovery  remained

incomplete,  and  without  prior  notice  or  a  hearing; and  in

granting the  SJM  despite  the presence  of  genuine  issues  of

material fact.

II.  THE RULE 56(f) PARADIGM

          When  a  party claims  an  inability to  respond  to an

                    

          the greatest  possible extent.   It shall  be
          the responsibility of counsel for  the moving
          party to arrange for the conference. . . .

D. Mass. Loc. R. 37.1.

     5For  technical reasons  related  primarily  to an  abortive
effort to secure reconsideration, the borrowers filed two notices
of appeal.  We need not distinguish between them.

                                8

opponent's   summary  judgment   motion  because   of  incomplete

discovery or the like, Fed.  R. Civ. P. 56(f) looms large.6   Our

first task, therefore, is to erect the framework under which Rule

56(f)  motions must  be  analyzed.   We  then proceed  to  a more

particularized  discussion  of  the  borrowers'  motions  and the

rulings with  respect thereto.   In performing this  analysis, we

remain mindful that  a district  court's denial of  a Rule  56(f)

motion is reviewed  only for abuse of discretion.   See Licari v.
                                                              

Ferruzzi,      F.3d    ,      (1st Cir. 1994)  [No. 93-2047, slip
        

op.  at 16]; Nestor Colon  Medina &amp; Sucesores,  Inc. v. Custodio,
                                                                

964 F.2d 32, 38 (1st Cir. 1992).

                  A.  The Applicable Framework.
                                              

          Fed. R. Civ. P. 56(f) describes a method of buying time

for  a party who, when  confronted by a  summary judgment motion,

can  demonstrate an authentic need for, and an entitlement to, an

additional interval in which to marshal  facts essential to mount

an  opposition.   See Paterson-Leitch  Co. v.  Massachusetts Mun.
                                                                 

Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988).  The rule
                   

                    

     6The rule reads:

          Should  it appear  from the  affidavits  of a
          party  opposing  the   motion  [for   summary
          judgment] that the  party cannot for  reasons
          stated present by  affidavit facts  essential
          to justify the party's opposition,  the court
          may  refuse the  application for  judgment or
          may order a  continuance to permit affidavits
          to be obtained or  depositions to be taken or
          discovery to  be had  or may make  such other
          order as is just.

Fed. R. Civ. P. 56(f).

                                9

is  intended to  safeguard  against judges  swinging the  summary

judgment axe too hastily.  See Price v. General Motors Corp., 931
                                                            

F.2d 162, 164 (1st Cir. 1991).

          Consistent with the  salutary purposes underlying  Rule

56(f), district  courts should  construe motions that  invoke the

rule generously, holding parties to the rule's spirit rather than

its letter.   See  United  States v.  One  Lot of  U.S.  Currency
                                                                 

($68,000),  927  F.2d  30,  33-34  (1st  Cir.  1991);  Hebert  v.
                                                             

Wicklund, 744 F.2d 218, 222 (1st Cir. 1984).  This does not mean,
        

however,  that Rule  56(f) has  no bite  or that  its prophylaxis

extends to litigants who act lackadaisically; use of the rule not

only  requires meeting  several benchmarks,  see infra,  but also
                                                      

requires  due diligence  both  in pursuing  discovery before  the

summary judgment initiative surfaces and in pursuing an extension

of  time thereafter.  In  other words, Rule  56(f) is designed to

minister  to  the  vigilant,  not  to   those  who  slumber  upon

perceptible rights.  See Paterson-Leitch, 840 F.2d at 989.
                                        

          Having traced the anatomy of the rule, we next add some

flesh to the bones.  A litigant who desires to  invoke Rule 56(f)

must  make  a sufficient  proffer.   In  all events,  the proffer

should be  authoritative;  it  should  be advanced  in  a  timely

manner; and it should  explain why the party is  unable currently

to  adduce the facts essential to opposing summary judgment.  See
                                                                 

id. at 988.   When, as is often the  case, the reason relates  to
   

incomplete discovery, the party's explanation must take a special

form:    it  should show  good  cause  for  the failure  to  have

                                10

discovered the  facts sooner;  it  should set  forth a  plausible

basis  for   believing  that  specified  facts,   susceptible  of

collection within a reasonable time frame, probably exist; and it

should  indicate  how  the   emergent  facts,  if  adduced,  will

influence  the outcome  of the  pending summary  judgment motion.

See id.
       

          In  the "delayed  discovery"  type of  case, then,  the

criterion  for Rule 56(f) relief  can be thought  of as embodying

five  requirements:   authoritativeness, timeliness,  good cause,

utility,  and  materiality.    We have  acknowledged  that  these

requirements  are not  inflexible  and that  district courts  are

vested with considerable discretion in their administration.  See
                                                                 

id. at 989.   In the exercise of that discretion,  one or more of
   

the  requirements may be relaxed, or even excused, to address the

exigencies  of  a given  case.   When  all five  requirements are

satisfied,  however,  a strong  presumption  arises  in favor  of

relief.   See Anderson v. Liberty  Lobby, Inc., 477 U.S. 242, 250
                                              

n.5 (1986) (stating that summary judgment will be forestalled if,

and to  the extent  that, the  nonmoving party  "has not  had the

opportunity  to discover  information  that is  essential to  his

opposition").   Unless the movant has been dilatory, or the court

reasonably concludes that the  motion is a stalling tactic  or an

exercise  in futility,  it should  be treated  liberally.   See 6
                                                               

Moore's Federal Practice   56.24, at 797-800 (2d ed. 1993). 
                        

                          B.  Analysis.
                                      

          The  main  battleground  between  the  parties  is  the

                                11

borrowers' third, and final, Rule 56(f) motion,7 which rested  on

a  claim of delayed discovery  still outstanding.   We proceed to

test this motion in the crucible of Rule 56(f).

          1.   Authoritativeness.   Appellants  accompanied their
          1.   Authoritativeness.
                                

motion with an affidavit  executed by Cathy Brooks.   Reading the

rule literally  and the case law carelessly, RTC asseverates that

the  affidavit is  defective because  it is  made by  an attorney

rather than a party.  This asseveration stems from misreading one

case, Hebert, 744  F.2d at 221  (a case that,  contrary to  RTC's
            

rendition  of  it,  stands  only  for  the  proposition  that  an

undocketed  letter from a lawyer  is not a  sufficient Rule 56(f)

proffer), and  from ignoring  a later case,  Paterson-Leitch, 840
                                                            

F.2d at 988 (a case in which we stated unequivocally  that a Rule

56(f)  proffer   may  acceptably   take  the  form   of  "written

representations of counsel subject  to the strictures of Fed.  R.

Civ. P. 11").

          This  case  floats comfortably  within the  safe harbor

contemplated by the  Paterson-Leitch court.  The  affidavit is of
                                    

record and has  been duly served  on the opposing  party.  It  is

signed by a person  who possesses firsthand knowledge and  who is

competent to address the specifics of the matters discussed.  The

                    

     7The second  extension motion sought  a continuance  through
May  14,  1993,  necessitated  by  a  medical   emergency.    See
                                                                 
Chronology, supra,  at No. 11.  While that motion appears to have
                 
been meritorious  in the sense  that a documented  family illness
precluded  the borrowers  from  "presenting  facts  essential  to
justify [their] opposition," Fed. R. Civ.  P. 56(f), the district
court  did not consider the motion in an expeditious fashion, and
it was effectively  superseded by  the third motion.   Hence,  we
train our sights on the latter target.

                                12

fact  that the affiant is  also the borrowers'  attorney does not

undermine the proffer; after  all, the borrowers themselves would

know the relevant  particulars only  through communications  from

counsel.   Since they could  hardly speak either  to the cause or

the  effect of  discovery delays,  requiring that  the supporting

affidavit  be  signed  by them  rather  than  by  a lawyer  would

mindlessly exalt form over substance.  Attorney Brooks' affidavit

is, therefore, sufficiently authoritative.

          2.  Timeliness.   RTC questions whether  the Rule 56(f)
          2.  Timeliness.
                        

motion  was filed  in a  timely  manner.   We  answer this  query

affirmatively.  There  is no fixed time  limit for filing a  Rule

56(f)  motion; that is, neither  the Federal Rules  nor the local

rules  place any relevant restriction on the submission of such a

motion, at  least when the court has not assigned a firm date for

a hearing  on, or adjudication  of, the opposing  party's summary

judgment initiative.8

          In the  absence of  an applicable time  limit, we  hold

that  a party  must invoke  Rule 56(f)  within a  reasonable time

following receipt of a motion for summary judgment.  It is, after

all, black  letter law that  when a  rule requires an  act to  be

done, and does  not specify a time for doing it, courts generally

                    

     8The only deadline  that arguably might apply  arises out of
the  requirement that  affidavits opposing  a motion  for summary
judgment  must be submitted at least one day before the scheduled
hearing  on the  motion.   See Fed.  R. Civ.  P. 56(c);  see also
                                                                 
Ashton-Tate Corp. v. Ross,  916 F.2d 516, 519-20 (9th  Cir. 1990)
                         
(discussing interface between Rules  56(c) and 56(f)).   But that
proviso has no application  where, as here, a motion  for summary
judgment is  decided  on the  papers,  without oral  argument  or
notice from the court of a cutoff date.

                                13

imply  an obligation  to  perform  the  act within  a  reasonable

period.    Under  this  rubric,  courts  regularly  have  grafted

"reasonable  time"  requirements  onto otherwise  silent  federal

procedural rules in both  the criminal and civil contexts.   See,
                                                                

e.g., Government of Virgin  Islands v. Knight, 989 F.2d  619, 627
                                             

(3d  Cir.) (collecting  examples), cert.  denied, 114 S.  Ct. 556
                                                

(1993);  Smith  v. Bowen,  815 F.2d  1152,  1156 (7th  Cir. 1987)
                        

(applying  judicially  created   reasonableness  requirement   to

determine timeliness  of motion to  amend judgment under  Fed. R.

Civ.  P. 54(d)); Brittain v.  Stroh Brewery Co.,  136 F.R.D. 408,
                                               

413  (M.D.N.C. 1991)  (same,  anent motion  for protective  order

under Fed. R. Civ. P. 26(c));  Titus v. Smith, 51 F.R.D. 224, 226
                                             

(E.D. Pa. 1970) (imposing reasonable time limit on filing of Fed.

R. Civ. P. 55(c) motion to remove entry of default).

          Application  of the  reasonableness  principle to  this

case is straightforward.   Given that the district  court delayed

ruling on  the first  extension motion for  several weeks  before

allowing it,  appellants had reason to wait until near the end of

what  would  have  been  the  second  extension  period  in   the

expectation that the judge would rule momentarily on their second

extension motion.  When the judge had not handed down a ruling by

the  end  of that  interval,  appellants  promptly renewed  their

motion,   seeking  a   further  extension.     In   the  peculiar

circumstances of this case,  we cannot say that the timing of the

                                14

third   extension    motion   falls   outside   the    realm   of

reasonableness.9

          3.    Good  Cause.    Although  RTC  protests that  the
          3.    Good  Cause.
                           

borrowers  failed  to show  good  cause,  the  facts  belie  this

protestation.   RTC bases its argument on the faulty premise that

it complied  fully with all outstanding discovery demands when it

cavalierly  announced,  more  than three  months  after discovery

responses initially were  due upon the borrowers' terms,  that it

would  deign  to produce  documents  at a  site  and time  of its

choosing.10   See Chronology, supra, at  No. 3.  We  do not agree
                                   

that  this  ipse dixit  was  the  functional equivalent  of  full
                      

compliance with outstanding discovery requests.

          The rules provide that interrogatories must be answered

within  30 days, see  Fed. R. Civ.  P. 33(b)(3),  and RTC's offer
                    

made no  provision whatever for  fulfilling that obligation.   Of

                    

     9The absence of any satisfactory explanation by the judge as
to why the second and third extensions were denied weighs heavily
in our resolution of this issue.   And that shortcoming is one of
several factors that distinguish this  case from Mendez v.  Banco
                                                                 
Popular de  Puerto Rico, 900 F.2d  4 (1st Cir. 1990),  upon which
                       
RTC  pins its  hopes.   In contrast  to the  case at  bar, Mendez
                                                                 
involved  "a   district  court's   reasoned   refusal  to   grant
                                           
incremental enlargements of time."  Id. at 7 (emphasis supplied).
                                       
Furthermore, Mendez did not implicate Rule 56(f) at  all; rather,
                   
the case concerned a motion for an enlargement of time under Fed.
R. Civ. P.  6(b).  See id.  at 6.  Finally,  Mendez presented the
                                                   
very  different case  of an  attorney who,  unlike the  Brookses,
repeatedly  asked   the  court,  without  any   good  reason,  to
accommodate his personal schedule.   See id. at 6-7.   A petition
                                            
for  a continuance is always suspect when  it is within the power
of the petitioner to alter the conditions that allegedly preclude
him from acting within the allotted period of time.

     10RTC  proposed to effect  production at the  offices of its
law firm and when "mutually convenient."

                                15

broader significance,  the rules give the  discovering party, not

the discovery target,  the option of specifying  the time, place,

and  manner of production  and inspection.   See Fed.  R. Civ. P.
                                                

34(b).  Absent a court order or an agreement among the litigants,

a party from whom discovery  is sought cannot unilaterally  alter

these directives to suit  its fancy.  This verity  has particular

force where, as  here, the discovering  party's notice limned  an

entirely   reasonable   time/place/manner  format   for  document

production.

          In the  final analysis, a movant's claim  of good cause

must  be   viewed  against  the  historical   background  of  the

litigation.   Here,  RTC's  dilatoriness over  a three-year  span

lends  considerable worth  to  the "goodness"  of the  borrowers'

"cause."  Although discovery  was due and owing, RTC  did nothing

for three  months, then made  a token gesture  toward compliance,

then hibernated for  the next  thirteen months,  and then,  after

representing  to the  court that  it  would promptly  set matters

straight, twiddled its corporate  thumbs for another nine months.

It  was only  under the  hammer of  a court  order that  RTC took

significant,  albeit  incomplete,  steps  toward  compliance;  it

answered the  interrogatories on April  2, 1993 (two  weeks after

the  court-imposed deadline  and well  over two  years  after the

answers  were  originally  due) and  it  simultaneously  effected

partial  compliance  with the  request  for  document production.

This was too little and too late.

          In  what  amounts  to   an  effort  at  confession  and

                                16

avoidance, RTC labors to shift the focus of our inquiry away from

its chronic disregard  of procedural requirements.   It says that

appellants contributed to the  delay and, at any rate,  that they

were lax in enforcing discovery deadlines.  We are unimpressed by

this fingerpointing.

          In  comparison to  RTC, the borrowers'  contribution to

the litany of delay appears modest.  RTC asserts, correctly, that

the borrowers waited two weeks before beginning inspection of the

initial batch of records, and that they then took from April 9 to

May  20  to review  the  documents delivered  to  their counsel's

office.     On  the   whole,  however,  neither   interval  seems

unreasonable.   The former  period strikes us  as no more  than a

routine  scheduling  glitch  and  the latter  period  is  largely

excused  by   the  family   illness  documented  in   the  second

continuance motion (and not disputed by RTC).

          RTC's effort to place  the blame for two lost  years on

appellants'  shoulders  is  disingenuous.     When  discovery  is

appropriately  initiated, the burden  of compliance lies foremost

with the party from whom the discovery is sought.  Of course, the

discovering party has the right to file a motion to  compel under

Fed. R.  Civ. P. 37, see  R.W. Int'l Corp. v.  Welch Foods, Inc.,
                                                                

937  F.2d  11, 15-20  (1st  Cir. 1991)  (discussing  mechanics of

motion  practice under  Rule  37),  but  this  right  is  not  an

obligation.   Rule  37  contains no  time  limit, and,  unless  a

particular  situation  presents special  circumstances suggesting

                                17

that   concepts  of   waiver  or   estoppel  should   apply,11  a

discovering party's  failure to invoke Rule  37 celeritously will

not  excuse  the  guilty  party's  failure  to  furnish  required

discovery  in a timely manner.  RTC's argument to the contrary is

reminiscent of an embezzler who  seeks to avoid the  consequences

of  his defalcation  by  criticizing the  victim  as having  been

careless with its  funds or  slow in reporting  shortages to  the

police.

          We will not  whip a dead horse.  RTC  has cited no case

in which  a Rule 56(f) motion  was denied on the  ground that the

movant, having  sought  discovery expeditiously,  then failed  to

take heroic measures to enforce his rights against a recalcitrant

opponent.   We decline  to  break new  ground and  set  so odd  a

precedent.  While  there are  no model litigants  here    neither

side has  done its  utmost to  advance the case    we  think that

under operative norms of litigation practice  and the totality of

the  extant  circumstances, appellants'  lassitude  in  moving to

compel did not excuse RTC's protracted dawdling.

          Before   leaving  this   topic,   we  offer   a   final

observation.    With  minor  exceptions not  relevant  here,  the

Federal  Rules of Civil Procedure apply to the government as well

as to all other litigants.  See United States v.  Yellow Cab Co.,
                                                                

                    

     11A  handful  of  courts  have  denied  Rule  37  motions as
unreasonably  late  when brought  on the  eve  of trial  or under
similar circumstances.   See, e.g.,  Price v. Maryland  Cas. Co.,
                                                                
561  F.2d 609, 611  (5th Cir. 1977);  Lapenna v.  Upjohn Co., 110
                                                            
F.R.D.  15, 18  (E.D.  Pa. 1986);  see  also 4A  Moore's  Federal
                                                                 
Practice,  supra,    37.02[6], at  47-48  (citing cases).   These
                
cases, however, are inapposite.

                                18

338  U.S.  338, 341  (1949); EEOC  v.  Waterfront Comm'n  of N.Y.
                                                                 

Harbor, 665 F. Supp.  197, 200 (S.D.N.Y. 1987).   This tenet  has
      

been  endorsed  with especial  frequency  in  discovery disputes.

See,  e.g., Campbell  v. Eastland,  307 F.2d  478, 485  (5th Cir.
                                 

1962), cert. denied, 371 U.S. 955 (1963); Barrett v. Hoffman, 521
                                                            

F. Supp.  307, 315 (S.D.N.Y.  1981) (collecting cases),  rev'd on
                                                                 

other grounds, 689  F.2d 324  (2d Cir. 1982),  cert. denied,  462
                                                           

U.S. 1131  (1983).   Indeed, because the  government is  rendered

uniquely powerful by its  vast resources and statutory authority,

it has a  special responsibility to  abide by civil  adjudicatory

rules.  Here, RTC shirked this responsibility.

          4.    Utility.   We  next  consider whether  appellants
          4.    Utility.
                       

presented  a  plausible  basis  for a  belief  that  discoverable

materials exist  that  would likely  suffice to  raise a  genuine

issue of material fact  and, thus, defeat summary judgment.   See
                                                                 

Nestor Colon,  964 F.2d  at  38; Price,  931 F.2d  at  164.   For
                                      

purposes of achieving  this benchmark, a Rule 56(f)  proffer need

not be  presented in a form suitable for admission as evidence at

trial, so  long as it rises sufficiently  above mere speculation.

See Carney v.  United States,      F.3d    ,      (2d Cir.  1994)
                            

[1994 U.S. App. LEXIS 5449 at *16].  This is as it should be, for

Rule 56(f) is best understood as a complement to other provisions

contained  in Rule 56, allowing the opposing party to explain why

he is as of yet unable to file a full-fledged opposition, subject

to  the more  harrowing evidentiary  standard that  governs under

                                19

Rules 56(e) and  56(c).12   See 10A Charles  Alan Wright,  Arthur
                               

R.  Miller &amp; Mary Kay Kane, Federal  Practice &amp; Procedure   2740,
                                                         

at 530-31 (1987 &amp; Supp. 1993).

          We think  that appellants'  proffer passes the  test of

utility.  In the affidavit accompanying the  motion, Cathy Brooks

states, among other things:

          When I  completed my review of documents that
          RTC did  produce,  I reviewed  them  with  my
          client  Betty Wells Scott .  . . .   Based in
          part upon her recollection, in part on my own
          experience with banks' procedures  and record
          keeping with respect  to construction  loans,
          and  in  part on  documents  obtained through
          other sources,  I have reason to believe that
          RTC  has  not  produced  all  of the  records
          requested.

          RTC  attacks this  statement as  inherently unreliable.

It draws analogies to two cases in which we discounted Rule 56(f)

proffers for vagueness.   See Mattoon v. City of  Pittsfield, 980
                                                            

F.2d 1, 8 (1st Cir. 1992); Peterson-Leitch, 840 F.2d at 989.  But
                                          

here,  the proffer  contained  more than  gauzy generalities;  it

specified  seventeen  categories   of  materials  requested   but

withheld.

          RTC also draws an analogy to Hebert, 744 F.2d at 220, a
                                             

case  in which a Rule 56(f) affidavit was rejected partly because

it recounted the affiant's conversations with a third person.  In

this  case,  however, although  the  Brooks  affidavit refers  to

                    

     12Although Rule 56 sets out stricter standards for materials
offered  on the merits of  a summary judgment  motion, see, e.g.,
                                                                
Garside v. Osco Drug, Inc.,  895 F.2d 46, 49-50 (1st Cir.  1990),
                          
those standards  do not apply to proffers  under Rule 56(f).  See
                                                                 
Carney,  supra;  see  also   Committee  for  First  Amendment  v.
                                                             
Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992).
        

                                20

conclusions  drawn by  a third  person, the  challenged reference

merely provides  a partial  basis for Brooks'  good-faith belief.

Since  Rule  56(f) requires  a movant  to  spell out  the reasons

underpinning  the  conclusion  that  further  discovery would  be

futile,  and since the  other bases  for Attorney  Brooks' belief

fell well within her personal knowledge, we are unprepared to say

that  this brief  reference  spoiled the  proffer.   Accordingly,

appellants' motion satisfies the utility requirement.

          5.  Materiality.   Conceding nothing, RTC also contests
          5.  Materiality.
                         

the materiality of the facts that the borrowers wish to discover.

We  think  that materiality  for  purposes  of Rule  56(f)  means

material to  the issues raised  on summary judgment,  and, hence,

the kind of additional discovery that will serve to vivify a Rule

56(f) motion is theoretically different from, and ordinarily will

be  more  restricted  than,   the  kind  of  discovery  generally

permitted  under  the Federal  Rules.   See  First Nat'l  Bank v.
                                                              

Cities Serv.  Co., 391 U.S. 253, 298 (1968).  In short, the facts
                 

that  the movant seeks to discover must be foreseeably capable of

breathing life into  his claim or defense.  See  Licari,     F.3d
                                                       

at     [slip op. at  16]; Taylor v. Gallagher, 737 F.2d  134, 137
                                             

(1st Cir. 1984).

          Evaluating  the potential significance of unknown facts

in regard to unadjudicated issues is something  of a metaphysical

exercise.   Consequently,  the threshold  of materiality  at this

stage of a case is necessarily low.  Cf., e.g.,  United States v.
                                                              

Agurs, 427  U.S. 97, 103  (1976) (explaining that  a fact may  be
     

                                21

material  for some purposes as  long as there  is "any reasonable

likelihood"  that  it could  affect  the  outcome).   Appellants'

proffer crosses that threshold.

          It cannot  be gainsaid  that the  issues raised in  the

complaint, answer, and counterclaims are complicated.  The issues

raised in  the SJM mirror this  complexity.  In an  effort to cut

through the  legal tangle, we parse the premises on which the SJM

rests   and   contrast   them   with    appellants'   prospective

counterarguments.

          RTC insists that appellants' defenses and counterclaims

are  entirely barred by reason of (i) the provisions contained in

the extension  agreement and general  release, see supra  note 1,
                                                        

(ii) the mandate of 12 U.S.C.   1823(e), and/or (iii) the D'Oench
                                                                 

doctrine, see D'Oench, Duhme &amp; Co. v. FDIC,  315 U.S. 447 (1942).
                                          

The borrowers  resist this  onslaught by  positing  (i) that  the

extension agreement  and general release are  products of duress,

and, hence, void  (or voidable);  and (ii) that  claims based  on

violations  of  the  plain  terms of  an  agreement  that  itself

comports with  the requisites  of  section 1823  and the  D'Oench
                                                                 

doctrine are not barred.

          In  respect  to  this  last  assertion,  the  borrowers

maintain that  further discovery  will prove ComFed  violated the

plain  terms  of  the  construction  loan  agreement in  that  it

disbursed  loan  proceeds improperly  by  (i)  paying contractors

directly,  without  authorization,  (ii)  paying  for work  never

completed, (iii) paying for substandard work, and (iv) paying for

                                22

work that deviated  from the construction  plans.  The  allegedly

discoverable facts bear directly  on the applicability of section

1823(e) and the D'Oench doctrine.  They also bear, albeit perhaps
                       

less obviously, on  the question  of duress (and,  hence, on  the

enforceability of  the extension agreement  and general  release)

because  duress in this type  of setting requires  proof that the

coercing party caused the financial plight  of the coerced party.

See  International Underwater  Contractors, Inc.  v. New  England
                                                                 

Tel. &amp; Tel. Co., 393 N.E.2d 968, 970 (Mass. App. Ct. 1979).
               

          We do  not believe it is either  necessary or desirable

for  a court  to  attempt to  probe  sophisticated issues  on  an

undeveloped record.  If, at this stage of the proceedings, a lack

of materiality is  not apparent, then  an inquiring court  should

err, if at all, on the side of liberality.  See $68,000, 927 F.2d
                                                       

at 33-34; Paterson-Leitch, 840  F.2d at 988; Hebert, 744  F.2d at
                                                   

222; see  also Slagle v.  United States,  228 F.2d 673,  678 (5th
                                       

Cir. 1956) (discussing  perceived need for courts "to  exercise a

spirit of liberality" under Rule  56(f)); 10A, Federal Practice &amp;
                                                                 

Procedure,  supra,   2740, at 532; id.    2741, at 550-51.  Since
                                      

we cannot  say  that  appellants'  merits-related  arguments  are

plainly  unmeritorious,13 and  since  the sought-after  discovery

                    

     13In a post-argument submission, RTC proclaims that the very
recent case  of Capizzi v. FDIC,     F. Supp.     (D. Mass. 1994)
                               
[No.  90-12775-S] sounds the death knell for the claim of duress.
We do not  agree.   Capizzi concluded that  a lender's threat  to
                           
foreclose could  not constitute  duress because the  borrower had
the  option  of  vigorously  defending  against  the  foreclosure
action.  In  this case, it  is not clearly  established that  the
borrowers  had such  an option,  for Mrs.  Scott suggests  in her
affidavit  that she had no knowledge of her potential defenses at

                                23

pertains  closely to  the underpinning  for those  arguments, the

Rule 56(f) motion passes the materiality test.

                          C.  Synthesis.
                                       

          We have now established, perhaps at greater length than

necessary, that  appellants' motion satisfies  the strictures  of

Rule 56(f).   And though  we leave  open the  possibility that  a

court  may  deny  even a  facially  valid  Rule  56(f) motion  in

appropriate  circumstances, the  aspects  of  the situation  here

militate strongly in favor of granting a continuance.

          In the first place, the facts needed to oppose  summary

judgment  are in RTC's exclusive control.  This is a circumstance

that  can assume decretory significance.  See Hebert, 744 F.2d at
                                                    

222 n.4 (suggesting that, once the benchmarks for a valid proffer

are  met, "continuances  should be  routinely granted  under Rule

56(f)  where the moving party has sole possession of the relevant

facts").  In the second place, the incompleteness of discovery is

RTC's fault.  When litigants spar over Rule 56(f),  fault packs a

considerable wallop  in inscribing the  scorecard.  See  Sames v.
                                                              

Gable,  732 F.2d  49, 51  (3d Cir.  1984) (explaining  that, when
     

reasonably diligent  efforts to obtain evidence  from the summary

judgment proponent  have been  thwarted, continuances "should  be

granted almost as  a matter of  course"); see also  International
                                                                 

Shortstop, Inc. v. Rally's,  Inc., 939 F.2d 1257, 1267  (5th Cir.
                                 

                    

the time she signed the extension  agreement and general release.
Thus,  even  assuming  that  Capizzi  is  good  law   of  general
                                    
applicability    a matter on  which we take no  view   it  is not
necessarily controlling.

                                24

1991), cert.  denied, 112  S. Ct. 936  (1992).   When Rule  56(f)
                    

functions  properly, it ensures that, in the mine-run of cases, a

litigant  who  fails  to  answer potentially  relevant  discovery

requests on schedule  will be unable  to demand summary  judgment

until after  he remedies his failure.   See Bane v.  Spencer, 393
                                                            

F.2d 108, 109 (1st Cir. 1968), cert. denied, 400 U.S. 866 (1970);
                                           

see  also 10A Federal Practice  Procedure, supra,    2741, at n.2
                                                

(collecting cases holding  that a grant of summary  judgment with

discovery outstanding constitutes clear error).

          Giving  these  additional   factors  due  weight,   and

considering the  record as a  whole, we conclude  without serious

question that  the court below  abused its discretion  in denying

the borrowers' third  Rule 56(f)  motion.  See  United States  v.
                                                             

Roberts,  978  F.2d 17,  21 (1st  Cir.  1992) (explaining  that a
       

district  court  abuses  its  discretion,  inter  alia,  when  it
                                                      

"commits a palpable error of judgment").

III.  CONCLUSION

          We  need  go no  further.14   In  civil as  in criminal

litigation, the government may strike forceful blows, so long  as

they are struck within the rules.  Here, the government  went too

far, frustrating appellants'  legitimate discovery initiatives by

                    

     14In light of our finding that the court below improvidently
denied  a  further  continuance  to  the  borrowers, we  have  no
occasion  to reach,  and express no  opinion upon,  the remaining
assignments  of error.    We  deem  it  appropriate  to  mention,
however,  that,  contrary  to  the  borrowers'  suggestion,  this
circuit   has   approved,  in   appropriate   circumstances,  the
adjudication  of summary  judgment motions  on the  papers, i.e.,
                                                                
without oral argument.  See, e.g., Cia. Petrolera Caribe, Inc. v.
                                                              
Arco Caribbean, Inc., 754 F.2d 404, 411 (1st Cir. 1985).
                    

                                25

playing   keepaway.     The  district   court  should   not  have

countenanced, much less rewarded, such dubious conduct.

          The order denying relief  under Rule 56(f) is reversed,
                                                                 

the judgment below  is vacated, and the cause is  remanded to the
                                                                 

district court for further proceedings.  Costs to appellants.
                                                            

                                26
