
USCA1 Opinion

	




          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                                     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 & Lupan was on  brief, for               _______________            ______________          appellants.               Joseph F.  Shea, with whom  Michael P. Condon,  Sheila Kraft               _______________             _________________   ____________          Budoff, Paul R. Gupta and Nutter, McClennen & 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          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          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 & Sucesores,  Inc. v. Custodio,                       _______________________________________    ________          964 F.2d 32, 38 (1st Cir. 1992).                            A.  The Applicable Framework.                            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.                                    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 & Mary Kay Kane, Federal  Practice & Procedure   2740,                                      _____________________________          at 530-31 (1987 & 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 & 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. & 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 &                                                         __________________          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.                                    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          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
