join concurring in part and dissenting in part:
I concur without reservation in parts I and II of the majority opinion prepared by Judge Bell for the en banc court. I respectfully dissent from part III both because I believe it faults the district judge for what was a mistake in trial tactics which plaintiff now wants to second guess and because it undercuts Fed.R.Civ.P. 56.
Since Judge Coleman’s dissent to the panel opinion deals in detail with the actions of counsel and the chronological context into which the procedural question is cast, it is unnecessary to do more here than touch the high spots. Plaintiff’s only indication to the court that he needed to pursue discovery to defend against the motions for summary judgment was couched in the vaguest possible terms. It was contained in his initial responsive pleading to the motions and was in this language:
Plaintiff would suggest that consideration by the Court of summary judgment motions at this early stage of the litigation is premature. The facts related to subject matter jurisdiction are certainly not before the Court in any complete fashion. Plaintiff has just recently initiated discovery with respect to jurisdictional facts by service on the Defendants of Requests for Production of Documents Related to Subject Matter Jurisdiction pursuant to F.R.C.P. 34. (Emphasis added)
Following this pleading all counsel reached an agreement which was cast into the form of a letter, a copy of which was delivered to the court. This letter agreement unqualifiedly provided that no discovery would proceed until after the court’s rulings on the then pending motions for summary judgment had been resolved. A copy of this letter *1148is set out in the margin.1 Suffice it to say that at least the trial court could reasonably have thought all counsel were then requesting that he proceed to rule on the summary judgment motions without awaiting the results of discovery.
Rule 56(f) is precise and unequivocal. A party who opposes a motion for summary judgment but cannot supply the factual basis for his opposition without the aid of discovery must make his problem known to the court by an affidavit. It is unnecessary here to reach the issue as to whether 56(f) mandates that the showing be under oath, since the substance of what was initially disclosed was so equivocal, and since even this equivocation was wholly destroyed by the later agreement to forgo discovery.
The plaintiff simply failed to comply with the spirit or the letter of this part of the Rule.
It well may be that a trial court might choose to overlook such a serious procedural shortcoming or a tactical agreement which hindsight has shown to be bad. Clearly, that court could determine that a just presentation of the issues of a particular case required further pursuit of discovery processes notwithstanding the fact that all counsel may agree not to follow such a course. However, no such broad prerogative properly appertains to an appellate court. Subject to rare exceptions calling for supervisory intervention (which does not extend to adjudging that a trial court has abused its discretion when it does no *1149more than honor an agreement of counsel to postpone discovery), this court’s function is to correct the errors of judges not lawyers.
I would affirm every aspect of this case.
. Re: Agreement as to Time for Objecting to or Complying with Plaintiff’s Requests for Production of Documents in CA-3-4195-B Littlejohn v. Shell Oil Company et al.
Gentlemen:
I am writing to set forth our agreement with respect to the Requests for Production of Documents (“Requests”) pursuant to Fed.R.Civ.P. 34 served by the Plaintiff in the above styled and numbered cause upon Defendants Shell Oil Company, The American Oil Company and Sooner Oil Company in the latter part of February, 1971. As you know, all three Defendants in said Cause filed Motions for Summary Judgment and oral motions under Fed.R.Civ.P. 12(b) which are now pending before Judge Hill.
I have discussed the matters hereinafter set forth with each of you with the exception of James C. Hamill, Esq., attorney for Sooner. I have talked to Kenneth Mayfield, Esq., an attorney in Mr. Hamill’s firm who is in contact with Mr. Hamill and who has confirmed that Mr. Hamill approves the terms of our agreement and that Sooner will comply therewith. Each of you and I agree to the following procedure as to the timing for objecting to and/or complying with the Requests of the Plaintiff:
1. If the Court overrules any of the three Defendants’ Motions for Summary Judgment or motions under Fed. R.Civ.P. 12(b), thus leaving one or more Defendants before the Court in said Cause, then, each of such Defendants still before the Court after such ruling shall:
(a) File in writing any objections such Defendant may have to Plaintiff’s Request for Production of Documents served upon it within seven (7) days after the entry of the Court’s Order so overruling such Defendant’s Motions; and
(b) Within thirty (30) days after the entry of the Order so overruling such Defendant’s motions, comply with Plaintiff’s Request for Production of Documents with respect to all of the items enumerated in such Request which the Defendant does not object to within seven (7) days (as set forth above) in accordance with the Federal Rules of Civil Procedure.
2. If the Court sustains any of the Defendants’ motions, thus dismissing Plaintiff’s claims against the same so that such Defendant is no longer before the Court after such ruling, then the Defendant or Defendants so situated shall be under no obligation or duty to comply with Plaintiff’s Requests for Production of Documents in any manner.
The intent of the Parties to said suit is that a Defendant with respect to which Plaintiff’s suit is dismissed upon the Motions now before Judge Hill shall be required to produce nothing and object to nothing. Defendants with respect to which the Plaintiff’s suit is not so dismissed shall comply with Plaintiff’s Requests for Production of Documents and/or object to all or part thereof in the manner stated above.