See Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary "that the entire record in the case must be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered"). In a 1979 case, this court held that evidence in the record must be considered by the reviewing court, even if not specifically brought to the attention of the district court. Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 65657 (5th Cir. 1979). However, in Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026 (5th Cir. 1982), the court held that, "[a]bsent extraordinary circumstances, we should not reverse a grant of summary judgment based on the presence of a factual issue that was not in some way brought to the attention of the district court."
Nor is this a case where the deposition that created the dispute was a needle in a paper haystack; the docket sheet shows that only five depositions were filed.Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656-57 (5th Cir. 1979) (footnote omitted). See also Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980) ("We note that a court can only enter a summary judgment if everything in the record — pleadings, depositions, interrogatories, affidavits, etc. — demonstrates that no genuine issue of material fact exists.") (emphasis in original).
Rule 56(c) expressly provides that the district court should consider depositions, among other record items, in deciding whether the moving party has carried its burden of proving that no genuine issue of material fact exists. See Nicholas Acoustics, 695 F.2d at 845-46; Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980) ("a court can only enter a summary judgment if everything in the record — pleadings, depositions, interrogatories, affidavits, etc. — demonstrates that no genuine issue of material fact exists"); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656-57 (5th Cir. 1979) (Rule 56(c) "does not distinguish between depositions merely filed and those singled out by counsel for special attention") (footnote omitted). These Fifth Circuit decisions requiring district courts to examine the entire record on a motion for summary judgment have also suggested that, in a large and complex case, a district court simply could not, and therefore need not, read the entire record before deciding a summary judgment motion.
“A claim barred by the applicable statute of limitations may properly be disposed of by summary judgment.” Higgenbotham v. Ochsner Found. Hosp., 607 F.2d 653, 657 (5th Cir.1979). “At the summary judgment stage, the moving party must show that there is no genuine issue of material fact as to whether the statute of limitations has run.”
Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention the [sic] court must consider both before granting a summary judgment. Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410-11 (5th Cir.1980) (citing Higgenbotham v. Ochsner Found. Hosp., 607 F.2d 653, 656 (5th Cir.1979)); Tippens v. Celotex Corp., 805 F.2d 949, 952 (11th Cir.1986). Under the Keiser rule, thus, the Court of Appeals would have this Court peruse all of the papers on file in this case and presumably also would have the Court consider evidence it happened upon accidentally, at the urging of neither party, even though the Court did not conduct an independent search.
On August 14, 1985, the Defendant filed a memorandum in opposition to the motion for summary judgment; the opposing memorandum attaches no affidavits or other documentation and points to no answers to interrogatories, admissions, pleadings, or depositions in the record in support of the opposition. Nevertheless, the Court has undertaken a review of the entire record, including all depositions, interrogatories, etc. to determine whether there is an issue of material fact requiring a trial, see Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656-57 (5th Cir., 1979). The Court has also undertaken a review of deposition transcripts in the main case record (in addition to the material in the adversary record) out of an abundance of caution to determine whether there is more than mere allegation in the pleadings that would substantiate the need for a trial.
Appellant further maintains it is sufficient that such documents be on file prior to the determination of the summary judgment motion to allow their use in the appellate process. Appellant cites Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653 (5th Cir. 1979), Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979), and Ottensmeyer v. Baskin, 2 Haw. App. 86, 625 P.2d 1069 (1981), in support of his proposition. Higgenbotham states:
In determining whether a moving party has met its burden of persuasion, the court is obliged to take account of the entire setting of the case and must consider all papers of record as well as any materials prepared for the motion. 10A Wright § 2721, p. 44; see, e. g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656 (CA5 1979). As explained by the Court of Appeals for the Third Circuit in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), "[i]f . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment . . . ."
There was a time in the Fifth Circuit when the nonmoving party's failure to designate "specific facts" was not fatal. If the record contained — in the language of Rule 56(c) — "depositions, answers to interrogatories, and admissions" and "affidavits" showing the existence of material facts in genuine dispute, it was the district court's responsibility to ferret the evidence out, upon pain of reversal. See Higgenbotham v. Ochsner Found. Hosp., 607 F.2d 653, 656-57 (5th Cir. 1979); Keiser v. Coliseum Props., Inc., 614 F.2d 406, 410-11 (5th Cir. 1980). This is basically the position the majority stakes out in our case.
Heath relies on Keiser v. Coliseum Properties, Inc., 614 F.2d 406 (5th Cir. 1980), and In re Hart, 130 B.R. 817, 823 (Bankr. N.D.Ind. 1991), which can both be traced to Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653 (5th Cir. 1979), for the principle that a court must consider all documents of record, not only those relied upon by counsel and referenced to the court, before granting summary judgment. We note, however, that this line of cases is in tension with the Supreme Court's more recent summary judgment jurisprudence, embodied in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).