Hastings Law Journal


During its 1992 term, the United States Supreme Court decided Eastman Kodak v. Image Technical Services, its first important summary judgment decision since 1986. In this Article Judge Schwarzer, who had decided the case at the trial level, and Alan Hirsch explore the implications Kodak has for the law of summary judgment. The Article first concludes that Kodak was not meant to alter the burden on either the moving or nonmoving party. Rather, to the extent that the case reinterpreted existing law, it merely reaffirmed that the moving party's burden may be defined by principles of substantive law concerning what inferences are "reasonable," and that opponents to the motion do not bear a special burden in antitrust cases. Next, the Article explores the confusion in lower courts over the parties' respective summary judgment burdens. An Eleventh Circuit panel in particular has disregarded the rule in Celotex v. CatreU that the moving party's burden is merely to point out an absence of evidence supporting the nonmoving party's case. Instead, it implied that the moving party must affirmatively disprove the nonmoving party's case. Finally, Judge Schwarzer and Mr. Hirsch explore the effect of Kodak on discovery management. The Kodak Court based its denial of summary judgment on the sparseness of the record. This illustrates a dilemma facing trial courts: Limiting discovery can lead to reversal of a summary judgment, but allowing extensive discovery defeats the purpose of summary judgment to bring about a quick and economical resolution of cases not requiring trial. The Article suggests that innovative approaches, such as a preliminary hearing to clarify issues, could be used to obtain a more informed basis for procedural rulings. The Article concludes by refuting the notion that using summary judgment motions to avoid full discovery would unfairly force a party to reveal his case prematurely. Such arguments are obsolete in light of modem case management techniques that encourage (and sometimes demand) early disclosure, while limiting discovery to that necessary for the movant to demonstrate the absence of a triable issue.

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