An affidavit supporting or opposing summary judgment has to clear a short but strict checklist, and the Rule 56(d) and Illinois Rule 191 affidavit requirements are close cousins: personal knowledge, specific facts that would be admissible at trial, and a signer who could testify to those facts in court. Illinois adds a requirement that sworn or certified copies of any document the affiant relies on be attached. When the affidavit’s purpose is to buy time for more discovery rather than to resolve the motion on the merits, both systems demand that you name what you need, why you don’t have it, and why it matters.
What Rule 191(a) Requires in Illinois
Illinois Supreme Court Rule 191(a) governs affidavits filed in connection with summary judgment motions under 735 ILCS 5/2-1005.1Illinois General Assembly. 735 ILCS 5/2-1005 Every affidavit has to satisfy four things at once:2Illinois Courts. Illinois Supreme Court Rule 191
- The signer has personal, firsthand knowledge of the facts stated. Hearsay and secondhand reports do not qualify.
- The signer is competent to testify to those facts at trial. If the person could not take the stand on this subject, the affidavit carries no weight.
- The affidavit lays out particular facts that would be admissible as evidence. Broad conclusions and personal opinions do not satisfy the rule.
- Sworn or certified copies of every document the affiant relies on are attached. A reference to a contract, bank statement, or medical record has to come with the actual document.
When no single person has personal knowledge of everything the motion requires, Rule 191 contemplates multiple affidavits from different people who collectively cover the ground. Filings often go wrong at exactly this point. Attorneys try to consolidate everything into one affidavit from a party or paralegal, and the court strikes the portions where the signer plainly lacked firsthand knowledge. Once stricken, that evidence is gone from the record, and the motion it was supposed to support often collapses with it.
What Rule 56(c)(4) Requires in Federal Court
Federal Rule of Civil Procedure 56(c)(4) tracks the Illinois standard closely. An affidavit or declaration used to support or oppose summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.3Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment
One practical distinction matters. The federal rule treats affidavits and unsworn declarations as interchangeable, so a party in federal court does not need a notary if the declaration follows the proper statutory form. Illinois offers its own notary-free option. The substantive bar is the same in both systems: firsthand knowledge, admissible facts, no unsupported conclusions.
Signing Without a Notary
A common misstep is assuming every affidavit requires notarization. In federal court it does not. Under 28 U.S.C. ยง 1746, anything that would normally need a sworn affidavit can instead be supported by an unsworn written declaration signed under penalty of perjury. For documents signed within the United States, the required closing is: “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]. [Signature].”4Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury
Illinois has a parallel mechanism in 735 ILCS 5/1-109. A document that would otherwise be sworn before a notary can instead be certified with this language: “Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.” Certified in that form, the document carries the same legal force as one sworn before a notary.
Copy the statutory language exactly. Paraphrasing it, even slightly, gives the court a reason to reject the filing. The federal version is short; the Illinois version is long; both are rigid.
Asking for More Time in Illinois: Rule 191(b)
Rule 191(b) applies when the facts a party needs to oppose summary judgment are known only to people whose affidavits cannot be obtained because of hostility or other reasons. The affidavit must name those individuals, explain why their affidavits cannot be secured, state what the affiant believes they would say under oath, and explain the basis for that belief. The court can then grant or deny the motion, order a continuance for depositions or interrogatories, or require production of documents from the named individuals.2Illinois Courts. Illinois Supreme Court Rule 191
Specificity is everything. A vague statement that other witnesses have relevant information accomplishes nothing. The affidavit has to identify the witnesses by name, explain the obstacle, and describe the expected testimony with enough detail for the judge to decide whether it would actually matter.
Asking for More Time in Federal Court: Rule 56(d)
Federal Rule 56(d) serves a similar function but reaches further. If a nonmovant shows by affidavit or declaration that it cannot present facts essential to justify its opposition, the court may defer ruling on the motion, allow time for additional discovery, or issue any other appropriate order.3Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment The rule was formerly numbered 56(f) before the federal rules were reorganized effective December 1, 2010, and older cases and practice guides still use that designation.
Rule 56(d) is not limited to hostile or uncooperative witnesses. It covers any scenario where facts essential to the opposition are currently out of reach, whether depositions have not been taken, document requests remain unfulfilled, or discovery has not yet opened.
What Your Rule 56(d) Affidavit Must Show
Courts do not grant Rule 56(d) relief because a party says it needs more time. The affidavit has to show concrete reasons the current record is incomplete. The Federal Judicial Center identifies several points courts weigh:5Federal Judicial Center. The Analysis and Decision of Summary Judgment Motions
- Identify the specific discovery you intend to take, such as deposing a particular employee or subpoenaing a defined category of electronic records.
- Describe what that discovery is likely to reveal. If you expect an email exchange to show a breach, explain why the exchange probably exists and what it would demonstrate.
- Connect the expected evidence to the specific elements of the claim or defense. The facts have to be material to the outcome, not just interesting background.
- Show prior diligence. Courts deny the request when the party already had ample opportunity to obtain the evidence and failed to act.
A request supported by nothing more than a general hope that discovery will turn up something useful will be denied. Courts also reject requests where the information is already in the party’s possession or where the proposed discovery is implausible.
Bad-Faith Affidavits and Sanctions
Rule 56(h) matters here. If the court finds an affidavit or declaration was submitted in bad faith or solely for delay, it can order the filing party to pay the opposing side’s reasonable expenses, including attorney’s fees. The court must first give the offending party notice and a reasonable opportunity to respond. Beyond fee-shifting, the party or attorney responsible can be held in contempt or face other sanctions.3Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment
The risk is especially live for Rule 56(d) affidavits. A request for more discovery time that reads as a stalling tactic invites not just denial but an affirmative cost order. The affidavit has to reflect a genuine need, not a strategic desire to delay an unfavorable ruling.
Filing Format and Deadlines
In Illinois, documents are submitted as individual PDF files through eFileIL. Combining multiple documents into a single PDF is not permitted.6Office of the Illinois Courts. eFileIL Electronic Document Standards Federal courts use CM/ECF, with formatting requirements that vary by district. In either system, file the affidavit, its exhibits, and the supporting brief together with the response to the summary judgment motion.
Response deadlines are not uniform. The Federal Rules of Civil Procedure do not set a specific number of days for opposing a summary judgment motion; the timeline comes from local court rules and individual scheduling orders. Many federal districts in Illinois use a 28-day response window, though this varies. Illinois state courts likewise rely on local rules and scheduling orders. Missing the deadline can result in the court treating the motion as unopposed, so confirm the applicable timeline before you start drafting.