dissenting:
It is the law of our circuit that when a district court denies a continuance sought for the purpose of obtaining additional discovery, the complaining party must show actual and substantial prejudice to obtain a reversal on appeal.1 See Sablan v. Dep’t of Finance of N. Mariana Islands, 856 F.2d 1317, 1321 (9th Cir.1988) (a court’s “decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.”) (inner quotation marks omitted); Butcher’s Union Local No. 498 v. SDC Investment, Inc., 788 F.2d 535, 540 (9th Cir.1986); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 n. 1 (9th Cir.1977).2
While the majority purports to apply this standard, its analysis and conclusions make clear that it considers a denial of “meaningful discovery” to be presumptively prejudicial, regardless of what happens at trial. Majority Opinion at 732. In effect, the majority buys Martel’s argument that the denial of a continuance for the purpose of conducting further discovery was “inherently prejudicial.” Appellant’s Reply Brief at 11. In holding that Martel suffered “actual and substantial prejudice,” the majority relies primarily on its own speculation about what might have happened at trial, without any showing from Martel as to how the discovery he was denied would have changed his presentation or the outcome at trial. “What might have been discovered had a continuance been granted is inadequate to establish prejudice.” United States v. Hernandez, 608 F.2d 741, 746 (9th Cir.1979).
In cases denying continuances, prejudice is measured in terms of the impact on the outcome of trial. See, e.g., United States v. Flynt, 756 F.2d 1352, 1362 (1985) (finding prejudice because the defendant was “not allowed to put forward the only defense he had”). Cf. United States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983) (holding that trial court error is harmless (i.e. not prejudicial) when “there is no reasonable possibility that the [error] complained of might have contributed to the conviction”). A complaining party must specify the prejudice inflicted by the denial of a continuance. See, e.g., United States v. Mitchell, 744 F.2d 701, 704-5 (9th Cir.1984) (finding no prejudice where defendant did not, inter alia “specify what defense theories his counsel might have explored”); United States v. Lane, 765 F.2d 1376 (9th Cir.1985) (same).
*740Here, we do not know what kind of ease Martel put on at trial because he has made no effort to tell us. For all we know, Martel’s theory of the case is facially implausible and his evidence completely lacking in probative value. At the same time, the officers’ version of the facts may have been completely plausible and fully supported by the testimony of non-party witnesses as well as the physical and documentary evidence.
In Butcher’s Union Local No. 498 v. SDC Investment, 788 F.2d 535, 540 (9th Cir.1986), we refused to find prejudice when the plaintiffs stated only that they “believe[d]” that discovery would enable them to demonstrate the court’s personal jurisdiction over the defendants, but did not specify what theory of jurisdiction they intended to pursue. “This speculation,” the court held, “does not satisfy the requirement that they make ‘the clearest showing’ of actual and substantial prejudice.” Id. (quoting Data Disc, 557 F.2d at 1285 n. 1).
Here, Martel makes no stronger showing to support his claim of prejudice. In fact, in his opening brief on appeal, Martel tells us nothing about the trial evidence, his theory of the case, or why additional discovery might conceivably have changed the jury verdict. Instead, he relies on statements such as this: “Denial of the motions to continue the trial and pre-trial were indisputably prejudicial. The adverse verdict alone is proof of that_” Appellant’s Reply Brief at 11 (emphasis added).
My colleagues go astray by focussing on the impact of a denial of discovery on the discovery process. They offer nothing more than conjecture about the possible impact on the jury’s verdict.3 The majority concludes: “It is clear that all the discovery was highly relevant to the essential factual issue that divided the parties, and on which Martel would be required to prevail at trial.” 4 The test, however, is not whether the discovery was relevant; the test is whether, given the trial evidence, there is any realistic reason to believe that additional discovery would have made any difference to the outcome. The majority fails to identify a single point of fact that was actually in dispute at trial where further discovery could actually have affected the outcome of the ease.
On appeal, the burden is on Martel to make a showing of a reasonable likelihood that the denial of further discovery caused him “actual and substantial prejudice.” Sablan, 856 F.2d at 1321. He cannot carry that burden without telling us at least something about what happened at trial. Unfortunately for him, he chooses to tell us nothing about the trial evidence, nor the specific issues of fact in dispute, nor has he given any reason to believe that additional discovery might have changed the outcome at the trial. By failing to tell us anything about the trial, or to provide us with a trial transcript or even portions thereof, Martel fails to carry his burden of showing even a reasonable possibility that additional discovery would have changed the result of the trial. We know nothing about the kind of case Martel actually put on at trial because he has told us nothing.
Nonetheless, the majority excuses Martel from his burden of showing some likelihood that the outcome of trial would have been affected by the denial of further discovery, and instead relies on its own conjecture about what the trial might have been like. Giving only lip service to the law of the circuit, the majority basically adopts a structural rule that dispenses with the requirement that the defendant show trial prejudice in eases of a denial of a continuance sought for the purpose of conducting additional discovery.
“Structural” rules that presume prejudice from trial court error are the exception, not the rule. Generally, parties are required to show that trial court error was in fact preju*741dicial.5 I see no justification for creating a de facto exception to the general rule for what the majority calls a denial of “meaningful discovery.”6 It is not unduly burdensome to require a party seeking reversal for a denial of discovery to tell us at least something about the disputed issues of fact and the trial evidence relevant thereto to help us make a judgment on the likelihood that additional discovery would have affected the outcome of the trial. Litigators routinely dissect a trial to find a basis for arguing that trial court error was prejudicial. In this case, for example, Martel at least could have tried to carry his burden by showing that the ease turned on a battle of credibility between his witnesses and the officers, that the testimony on both sides was reasonably credible on its face, and that the outcome could easily have been different if he had been given the opportunity to probe for possible inconsistencies in the deputies’ testimony in the informal, relatively risk-free setting of depositions outside the presence of the jury. For our part, we routinely review such claims of trial prejudice despite their inherently speculative nature. But we cannot be expected to decide such issues without help from the party claiming trial court error. In this ease, Martel has provided us with no help whatsoever. In sum, I see no basis in reason, experience, precedent, or the circumstances of this particular case for creating a discovery exception to the general rule requiring a party to demonstrate a likelihood that trial court error affected the outcome of the trial rather than presuming trial prejudice from a denial of a continuance to conduct further discovery.
Finally, the majority’s reliance on United States v. Lane, 765 F.2d 1376 (9th Cir.1985), as setting the standard of prejudice, is misplaced. See Majority Opinion at 735-736. In Lane, we held that the defendant failed to show actual prejudice because he “ha[d] not specified which witnesses his defense attorney would have interviewed, which documents and exhibits he was unable to examine, or what defenses he might have explored.” Id. The majority cites Lane as authority that Martel has carried his burden of showing prejudice simply by identifying witnesses he wanted to depose and documents he wanted to examine. But the majority overreads Lane. Lane merely holds that in failing to specify any witnesses, documents or theories he would have pursued on discovery, he failed to make the required showing of prejudice. Lane cannot be read as authority for the logically different proposition that Martel carried his burden of showing prejudice merely by identifying some witnesses he wanted to depose and some documents he wanted to examine. In other words, making a better case than the defendant made in Lane is a necessary, but certainly not a sufficient condition to making the showing of prejudice required to get a new trial. Lane tells us only what constitutes an insufficient showing of prejudice; it is not authority that Martel made a sufficient showing.
In sum, Martel has failed to carry his burden of showing trial prejudice because he has failed to make any showing that the outcome might have been different had he been given an opportunity for further discovery. He tells us nothing about the trial except that he lost. He makes the preposterous argument that the “adverse verdict alone is proof’ that the denial of the continuance was prejudicial. Appellant’s Reply Brief at 11. That, of course, is not and cannot be the law. If it was, every trial court error would per se be prejudicial to the losing party.
Nonetheless, my colleagues bail Martel out by engaging in baseless speculation about what might have happened at trial had he been given time for additional discovery. In effect, the majority has created a structural rule that presumes prejudice whenever there is a denial of “meaningful discovery” — a standard the majority infuses with no content. I dissent.
*742Before: WALLACE, Chief Judge.ORDER
Nov. 14, 1994
Upon the vote of a majority of nonreeused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3.
. Because I believe Martel has failed to make the required showing of actual prejudice, I do not address whether the district court abused its discretion in denying Martel’s motion for a continuance.
. In this case, as in Sabían, "a continuance was sought for the purposes of conducting discovery, and hence its denial was effectively a denial of discovery.” 856 F.2d at 1321. See also United States v. Lane, 765 F.2d 1376, 1379 (9th Cir.1985) (movant must show actual prejudice before a denial of a motion for continuance will be reversed); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir.1984) (same).
. Incidentally, Martel was not denied all discovery. In fact, from May 17, when the defendants filed their answer, until the trial on August 27, Martel conducted substantial discovery, which yielded answers to interrogatories and documents. He did not, however, take a single deposition even though he knew the identity of 6 of the 7 deputies involved in the incident as of June 24 when he was given notice of an August 27 trial date; by August 2, he knew the identity of the final deputy.
. The factual issue they are referring to concerns the amount of force utilized by the defendants.
. See Fed.R.Civ.P. 61 (“[N]o error or defect in any ruling ... is ground for ... setting aside a verdict ... unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).
. The majority makes no attempt to give content to its "meaningful discovery” standard. Instead, it muddies up the legal waters by employing an elastic, vague, and ultimately meaningless phrase that will be the source of vexatious litigation in the future.