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D. Applicability of Rule 121(e)
On October 31, 2006, we filed respondent’s motion, pursuant
to Rule 121(d), to submit supplemental affidavits. In paragraph
5 of her declaration submitted in support of that motion,
respondent’s counsel states that “because the facts are in
control of Petitioner, Participating Partner and third parties,
Respondent is unable to present additional facts to support its
opposition to * * * [the motion].” In the body of that motion,
respondent argues that the foregoing “Paragraph 5 * * * like
Paragraph 38 of * * * [a prior declaration submitted by
respondent’s counsel] sets forth reasons supporting why
Participating Partner’s Motion for Partial Summary Judgment
should be denied”. In support of his argument, respondent cites
Rule 121(e), which provides as follows:
(e) When Affidavits Are Unavailable: If it
appears from the affidavits of a party opposing the
motion that such party cannot for reasons stated
present by affidavit facts essential to justify such
party’s opposition, then the Court may deny the motion
or may order a continuance to permit affidavits to be
obtained or other steps to be taken or may make such
other order as is just. If it appears from the
affidavits of a party opposing the motion that such
party’s only legally available method of contravening
the facts set forth in the supporting affidavits of the
moving party is through cross-examination of such
affiants or the testimony of third parties from whom
affidavits cannot be secured, then such a showing may
be deemed sufficient to establish that the facts set
forth in such supporting affidavits are genuinely
disputed.
By order dated April 18, 2007, we denied respondent’s motion
to file supplemental affidavits because of (1) respondent’s
inability (both past and prospective) to obtain the affidavit
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