The opinion
NICHOLS, Circuit Judge,
concurring in the result.
I concur in the result.
The state’s admission, made post argument, shows that the district judge decided the case under a possible misapprehension of fact. He must be allowed by reversal and remand an opportunity to evaluate the appellants’ claims on the basis of the true facts.
Even before the state made its commendable and candid admission, it was apparent to me that the district court had committed mayhem upon Fed.R.Civ.P. 12 and 56. A motion to dismiss is converted to a motion for summary judgment as Rule 12(b) permits when the moving party relies on documents outside the pleading. As I understand Rule 56, the conversion of a motion to dismiss to one for summary judgment is automatic when a party supports his motion with affidavit or other material outside the pleading. Alabama v. Woody, 473 F.2d 10 (5th Cir.1973) says this is not so as to a suggestion of mootness. But that court gave the opposing party a chance to respond on the mootness issue anyway. I think it really was holding it did not have to allow discovery. But the court here entered summary judgment as Rule 56 allows without giving the opportunity and time for response that Rule 56 requires. The dismissal here was not on the ground of mootness alone, because of return of the license, but the court held the alleged policy to be and have been wholly a figment. He had, I think, quite understandably formed the impression that the suit was frivolous and tended to the harassment of high public officials. He misused the dictum in Butz v. Economou, 438 U.S. 478, 508 , 98 S.Ct. 2894, 2911 , 57 L.Ed.2d 895 (1978) as empowering him to cut corners in protection of persons *1297 with qualified immunity against frivolous litigation. This, I think, is a misreading of what our highest court intended. I think it meant that the rules, properly applied, were adequate to afford protection. Let us hope that this is correct.
I thought at oral argument that if we affirmed, it was going to have to be on the ground the error was harmless. This conclusion would have rested on the ground that plaintiffs’ case rested entirely on unverified suspicions which they would need to depose high public officials in order to substantiate. They did not use their opportunity when asked at oral argument to show they had more. I, on the contrary, believe one of the uses of summary judgment is to cut off depositions of persons when such depositions would tend to harass and are not conducted upon a reasonable belief that they will lead to relevant evidence. Of course, it cannot be entered if there is a triable issue of fact, but in a proper case it can be entered despite bald assertions of the party that he may be able to establish such an issue if allowed to depose members of the adverse camp. The assertions must have the support of some reason to expect the depositions will lead to relevant evidence. Failure to enforce this often will lead to failures of summary judgment procedures to shorten the duration and control the cost of modern civil litigation as it should.
Now all is changed. It is reasonably apparent there is, or was, or may have been, some kind of policy to impound the driving licenses of persons suspected of being illegal aliens. Anyway, there was a memo dealing in some way with that subject. It was not contended that such a policy, if real, would have any warrant in law. Summary judgment is shown to have been premature. The fact finding court must not enter judgment again until the facts are clear. One still may hope some better way to establish the facts will be found than the fishing expedition the appellants desire. The state admits that a memo exists. It tells us nothing of what the memo says, or by whom, or to whom it was written. It would perhaps not have got appellants so far if its existence had not previously been denied.
Agent Wofford’s purported telephone statement may not be barred as hearsay as against Wofford, who is said, however, to have had no other connection with the case. Before we assert it is admissible against other defendants who may have had something to do with the case, we should know what his authority was. This is the clear import of the rule. Or is he a co-conspirator?
I will pass over the mootness issue as I never would have affirmed on the ground of mootness.
As regards part III of the opinion, it is not correct that a party can rely in summary judgment upon his own pleading. See Rule 56. Possibly it was error to dismiss the complaint as against Wofford in view of his statement, but surely it does not or did not suffice to hold in the case all of the numerous persons named, independent of the state’s recent admission.
The court’s analysis of the case is flawed, in my view, but I agree that we must reverse and remand.