It is further provided in F.R.Civ.P. 56(f):
'Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavits facts essential to justify his 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 isjust.' (Emphasis supplied.)
Under these circumstances, it seems clear that plaintiff is required to secure permission of the court for the taking of depositions which are noticed more than four months after a Motion for Summary Judgment has been filed and several weeks after notices have been sent to counsel that an argument on the Motion for Summary Judgment has been scheduled, particularly when such notice of depositions is sent on the eve of the date that one of the briefs for such argument is due so that counsel for the moving party has already prepared his brief on the basis of a record which will be different from the record which the party noticing the depositions wishes to present to the court. At the least, plaintiff's course at this time should consist of filing affidavits on personal knowledge, as described in F.R.Civ.P. 56(e), or the affidavits contemplated by F.R.Civ.P. 56(f), pointing out that it 'cannot for the reasons stated present by affidavits facts essential to justify his opposition' and, hence that depositions are necessary.
Whereas the authorities cited by both counsel at the argument on the above Motion are helpful, they do not specifically deal with the situation presented by this record. However, the case of Goldboss, etc. v. Reimann, 55 F.Supp. 811, 820-821 (S.D.N.Y.1943), aff'd 143 F.2d 594 (2nd Cir.1944), indicates that the above conclusion is required by the wording of F.R.Civ.P. 56, and no other judicial precedent has been found by counsel or the court.
It is quite possible that on the basis of such affidavits as may be filed by plaintiff under F.R.Civ.P. 56(f) and the record which is before the court at the time of the scheduled argument on the Motion for Summary Judgment, the court may order a continuance to permit depositions to be taken. See, for example, Pittsburgh Hotels Ass'n v. Urban Redevelop. Auth., 29 F.R.D. 512 (W.D.Pa.1962). However, such a deposition should await the filing of some affidavits by plaintiff in opposition to the Motion under either 56(e) or 56(f), giving the 'reasons' provided for in such rule.
Since continuing discussions by counsel may result in agreement that certain depositions be taken, the protective order entered will provide for its possible modification by further order of this court.