(dissenting). Our decision herein will have a profound effect upon trial practice. No longer will counsel be able to rely' on a scheduling order to prepare for trial.
Under the scheduling order in this case, plaintiffs had six months to complete discovery and trial was not scheduled for seven months when defendant and third-party plaintiff David Seidl moved for summary judgment. Nonetheless, the trial court granted Seidl's motion because plaintiffs' expert witness was not prepared at that time to express an opinion to a hydrogeologic probability that contaminants from Seidl's property were a source of contamination of plaintiffs' wells. I conclude that plaintiffs' proof satisfied the requirement of § 802.08(4), STATS.1 They show by affidavit cause for their inability to present facts *867essential to justify their opposition to Seidl's motion. Upon that showing and their showing that they could likely present such facts after further investigation and discovery, the trial court should have denied Seidl's motion and allowed plaintiffs to complete discovery.
It is undisputed that plaintiffs' and Seidl's wells contain the same contaminant, petroleum. A gasoline station was operated on Seidl's property for sixty-three years. Seidl's only defense is that the contaminants from his wells did not migrate to plaintiffs' wells. Plaintiffs' expert witness testified that migration from Seidl's wells to plaintiffs' might be established through on-going investigation. The trial court concluded that that was not a sufficient showing. It did not consider that plaintiffs had six months under the scheduling order to complete discovery.
Plaintiffs began this action November 6, 1991, alleging that they were owners of property whose wells were being contaminated by seepage from a gasoline and bulk fuel station and Seidl's gas station known as East Side Auto. At the time plaintiffs submitted their brief to this court, both properties were owned by Wisconsin Central Ltd. and were formerly owned by the Soo Line Railroad.
East Side Auto had been operated as a retail gasoline facility for over sixty-three years. In November 1990, Central Wisconsin Engineers, Inc. (CWE) removed three underground storage tanks at David *868Seidl's request. Because of the obvious contamination CWE discovered, the excavated soils were backfilled, to be addressed in the remedial phase of the project. Several months prior to the tank removal, numerous private wells in the vicinity were determined to contain petroleum-related contaminants. During this time, two other sites in the area were investigated to determine whether petroleum contaminants from their property were migrating to the private wells.
After a public hearing, DNR issued orders to several potential responsible parties (PRPs), including East Side Auto. CWE reported: "To date, the extent and degree of the groundwater contamination in the Milladore area has not been determined, but is believed to be following possible fracture patterns in the bedrock layer. Because the extent of the groundwater contaminant plume is not known, no remedial activities have yet been implemented."
Because the trial court relied to some extent on the time plaintiffs had had for discovery, it is significant to demonstrate that the investigation of groundwater pollution, to locate the source of the pollution, to conduct negotiations with and hold hearings before DNR, and to prepare and carry out a remediation plan is a very lengthy process. After CWE removed the underground storage tanks in November 1990, CWE presented to DNR its "Tank Closure Site Assessment for East Side Auto" February 1991. Field activities for the investigation by CWE took place August 5-12,1992. CWE shows the scope of the work which it performed in para. 1.3 of its report. It did not complete its report until March 1993.
While CWE was making its investigation for East Side Auto, two other sites were under investigation by DNR. Between March 5, 1990, and May 6, 1992, DNR *869tested approximately forty-one sites for the presence of VOCs, and identified approximately eleven sites having exceedances of several petroleum product contaminants.
CWE identified that regional and local groundwater flow was to the south-southeast. It also calculated the flow velocity of ground water at the East Side Auto site as approximately 7.5 feet per year. CWE identified potential migration pathways from the site, including a sewer lateral and bedrock fractures. CWE also identified potential receptors of contamination. In para. 3.6 of its report, it stated:
Because the groundwater within the bedrock layer has been determined to contain exceedances of petroleum compounds, and based on the increase of the number of contaminated wells and increase in contaminant levels, it is likely that the contaminant plume will continue to migrate. Possible fracture patterns within the bedrock layer may pose a threat to the deeper aquifer, particularly because groundwater will tend to follow fracture patterns. Therefore, nearby/neighboring wells down gradient and side gradient from East Side Auto . . . may be potential receptors for future or increased contamination. ...
DNR and Seidl and the two other PRPs stipulated with DNR in four proceedings — NCD-91-12, NCD-91-13, NCD-91-14, and NCD-91-15 — to further activity relative to the discharges of hazardous substances from the three sites. The stipulation was entered into March 23,1993. Included was submission of the Remedial Investigation/Feasibility Study Report, including a proposed final remedial action plan (RAP), implementation of the RAP, completion of the RAP, and submission of the RAP report. In addition, the PRPs *870agreed to either: (a) "have CWE resubmit its October 1992 Investigation Report, incorporating DNR's comments of November 10, 1992"; or (b) "have the new consultant prepare a report, in accordance with DNR's Remedial Investigation Checklist. . . DNR and East Side Auto further stipulated that the time limits as to East Side Auto were subject to East Side Auto obtaining financing to complete the project.
Plaintiffs named Robert J. Karnawskas their expert witness. Seidl took Karnawskas's deposition February 9, 1993. He deposed that there was basic information on the groundwater flow patterns in the area of East Side Auto that needed confirmation before he could give an opinion with a reasonable degree of hydrogeologic certainty. When asked whether that flow pattern had been determined "as of this time," Karnawskas testified:
I believe given the contaminant levels that have been observed on the Schierl property, that there is a reasonable degree of certainty as to a ... relationship between that contamination and that which is observed at the Ruth Lish property. And until further work is done, it's possible also that the contamination emanating from the East Side Auto property may also have involvement.
(Emphasis added.)
In response to a question as to sites possibly being reached by contaminants originating at the East Side Auto site, he testified:
I think further evaluations done on the nature of fractures and patterns that exist in that area, that would enable one to . . . formulate a more conclusive opinion [as] to what extent those fractures *871may play a role in the contaminants migrating from that far east toward the west of those wells.
He further deposed that it was "possible" that contaminants from the East Side Auto site could be the source of contaminants found in neighboring wells.
Winston A. Ostrow, an attorney for defendant Schierl, Inc., deposed that as of April 1, 1993, Schierl was obtaining work plans from environmental consultants to complete the environmental investigation of the Milladore area, including investigation of the potential contamination pathways discussed in CWE's report. He further deposed that this investigation was subject to the strict time schedule imposed in the stipulation with DNR.
From this evidence, particularly the report of CWE, I conclude that expert testimony was not necessary to permit a jury to conclude that it was probable that East Side Auto was a source of the contaminants in the wells of the nearby properties. The fact that the contaminants in East Side Auto's wells and the neighboring wells were identical alone would sustain a jury's verdict that East Side Auto was a source of the contamination of the adjacent wells.
However, if expert testimony is necessary, the trial court's grant of summary judgment was premature when six months remained for discovery under the scheduling order and seven months remained before trial.
A scheduling order is in the nature of a stipulation between the parties and the court as to the conduct of discovery and trial.
One of the primary goals of the rules [of civil procedure] is to establish a system in which lawyers and litigants may confidently expect their cases to move *872along apace. The scheduling order is intended to provide the framework in which lawyers can realistically allocate time to the pretrial activities in each case. Since modifications of the scheduling order necessarily lessens the scheduling certainty that is the goal of this rule, they should be granted sparingly.
Charles D. Clausen & David P. Lowe, The New Wisconsin Rules of Civil Procedure: Chapters 801-803, 59 Marq. L. Rev. 1, 68 (1976) (emphasis added).
There is nothing in the rules of civil procedure which prevents a party from moving for summary judgment before discovery is completed. However, a court may not, without erroneously exercising its discretion, grant summary judgment when an opposing party shows by affidavit that he or she cannot at that time present by affidavit facts essential to justify his or her opposition.
3 Jay E. Grenig & Walter L. Harvey, Wisconsin PRACTICE § 208.5 (2d ed. 1994), states that:
Subsection (4) [of § 802.08] protects a party opposing a summary judgment motion who for valid reasons cannot by affidavit or other authorized means present facts essential to justify the party's opposition to the motion.
A party who seeks the protection of Subsection (4) must state by affidavit the reasons why the party is unable to present the necessary opposing material.... The affidavit need not contain eviden-tiary facts going to the merits of the case; it is merely a sworn statement explaining why these facts cannot yet be presented.
(Citing Wright, Miller & Kane, Federal Practice and PROCEDURE: CIVIL 2d § 2742). In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, *87328 F.3d 1388, 1396 (5th Cir. 1994), the court stated as follows:
"Rule 56 does not require that any discovery take place before summary judgment can be granted; if a party cannot adequately defend such a motion, Rule 56(f) is his remedy." Thus, that more time was scheduled for discovery does not, by itself, defeat summary judgment. The [plaintiffs] must satisfy Rule 56(f), a rule which "may not be invoked by the mere assertion that discovery is incomplete; the opposing party must demonstrate 'how the additional time will enable him to rebut the movant's allegations of no genuine issue of material fact.'" "[T]he nonmovant’s 'casual reference to the existence of ongoing discovery falls far short of showing how the desired time would enable it to meet its burden in opposing summary judgment.'"
(Quoted sources omitted); see also Burns v. Gadsen State Community College, 908 F.2d 1512, 1519-20 (11th Cir. 1990) (district court should have delayed its decision on the merits of defendant's motion for summary judgment until responses to interrogatories had been filed); Dunkin' Donuts of America, Inc. v. Metallurgical Exoproducts Corp., 840 F.2d 917, 919 (Fed. Cir. 1988) (summary judgment is inappropriate unless a tribunal permits the parties adequate time for discovery); Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988) (summary judgment is disfavored where relevant evidence remains to be discovered); First Chicago Int'l v. United Exchange Co., 836 F.2d 1375, 1381 (D.C. Cir. 1988) (plaintiff must have "a full opportunity to conduct discovery.").
Plaintiffs showed by the engineer's report and their expert witness's testimony and affidavit that they could not present at that time facts essential to justify *874their position. However, they did show that they could provide that evidence through on-going investigation, particularly the proceedings before DNR. Section 802.08(4), Stats., required that the trial court give them that opportunity.
For these reasons, I respectfully dissent.
Section 802.08(4), STATS., provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the motion for judgment or may order a continuation to
*867permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The statute is identical to Rule 56(f), Federal Rules of Civil Procedure, and was adopted when the supreme court "federalized" Wisconsin's rules of civil procedure, 67 Wis. 2d 587,630-32 (1976)..