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June 16, 2016 Articles

Why I Love Rule 36—and Why You Should Too

This rule, and state law equivalents, have a place in the discovery plan.

By Fitzgerald T. Bramwell

Requests to admitare the Rodney Dangerfield of pretrial procedure—they get no respect. Even though the Federal Rules of Civil Procedure include requests to admit under the “discovery and disclosures” subsection, some courts have said that they are not technically a discovery device. E.g., Nat’l Semiconductor Corp. v. Ramtron Int’l Corp., 265 F. Supp. 2d 71, 74 (D.D.C. 2003). But even if they are not technically a discovery device, Rule 36 and state law equivalents have a place in the discovery plan.

Unlike interrogatories and document requests that elicit and expound on facts, requests to admit seek to narrow issues for litigation: “[T]he intended impact of an admission is to conclusively establish the admitted fact unless the court permits a withdrawal or amendment of the admission.” Henry v. Champlain Enters., 212 F.R.D. 73, 77 (N.D.N.Y. 2003). The procedure under the Federal Rules is fairly simple. One party makes a statement of fact and asks the other party to agree with it. The responding party’s principal choices are to admit the allegation or to deny the allegation. Fed. R. Civ. P. 36(a)(4). However, the responding party may also (1) object to the request as beyond the scope of discovery, (2) provide a qualified admission, or (3) explain that it has insufficient information to allow it to admit or deny the allegation. Id. See also McFadden v. Ballard, Spahr, Andrews, Ingersoll LLP, 243 F.R.D. 1, 7 (D.D.C. 2007). If a party says it is unable to admit or deny, it must make “a reasonable inquiry” into the allegation and assert “that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4).

Given the above, counsel can be forgiven for thinking that the request to admit is nothing more than a formal request for a stipulation. In reality, it is much more because—at least in the federal system—the rule imposes an obligation to inquire into the truth or falsity of the requested admission. See Nguyen v. Winter, 756 F. Supp. 2d 128, 130 (D.D.C. 2010). In other words, opposing counsel cannot simply refuse to agree to a request out of obstinacy: There must be a reason for denying a proper request to admit. A bad-faith denial of a request to admit can lead to discovery sanctions. Fed. R. Civ. P. 37(c)(2). But see Buzz Off Insect Shield v. S.C. Johnson & Son, Inc., 606 F. Supp. 2d 571, 592–95 (M.D.N.C. 2009) (declining to award sanctions where responding party had good reason to deny certain requests to admit).

It is the responding party’s obligation to inquire—together with the ability to then serve interrogatories and depose witnesses—that makes the request to admit so useful. Using Rule 36, counsel can ask a party to admit a fact. If the party admits the fact, counsel does not need to spend further resources on the issue—that particular fact is settled. But, if the party denies the request to admit, counsel can use an interrogatory to ask the important follow-up question: Why? Why do you deny this fact? What evidence do you have that contradicts what is obvious to us? Please provide each and every reason you believe that what we have stated is incorrect. While you’re at it, please also give us any documents that support your view of the world. These follow-up questions are surprisingly powerful.

Consider the following hypothetical: An executive is told that he is not performing as required and that he is going to be given a last chance to correct these issues before the termination. The “last chance” letter states that the executive must meet certain minimum performance metrics within the next quarter. (For example, the executive’s team may need to ship a certain amount of product during the next quarter or make sure that waste product does not exceed a certain dollar amount.) When the executive fails to meet those metrics, his employment is terminated. A few weeks later, the now former supervisor serves the employer with process, alleging wrongful termination. You represent the employer.

As defense counsel, one of your arguments will be that the former employee was terminated for cause and that termination was therefore proper. To present this defense, you want to show that the employee failed to meet known performance standards. What better source of information than the employee’s own words? As soon as discovery opens, you ask the employee to admit that he failed to meet at least one of the minimum performance standards articulated in the “last chance” letter. Not surprisingly, the employee denies having done anything to merit termination, and he denies your request to admit.

After receiving the denial, your next move could be to issue an interrogatory asking the employee to identify each and every performance metric he satisfied. The employee is now faced with an uncomfortable choice. On the one hand, he can retract his denial and admit that he missed some of the metrics, setting himself up to lose on summary judgment. On the other hand, he can continue to lie about his performance and look incompetent (at best) when the employer introduces the metrics as evidence at trial. Alternatively, counsel might raise the issue at the employee’s deposition. After showing him the metrics, counsel might ask, “You denied request to admit no. X, which asked you to admit that you missed at least one of the metrics. What metrics were hit?” When the employee answers “I don’t know,” you may have ammunition for a motion for summary judgment and, potentially, a motion for discovery sanctions.

Much like a boxer’s simple jab setting up a knockout combination, the request to admit can be an opening move in a discovery plan that sets the case up for victory. By narrowing the issues for litigation, it can help counsel focus limited interrogatories on key issues. (Recall that Rule 33(a)(1) of the Federal Rules of Civil Procedure limits counsel to 25 interrogatories without leave of court. There is no such limit on requests for admission in the Federal Rules.) And, together with other discovery devices, it can also help counsel force an opponent to explain a position. Given that the Federal Rules do not limit the number of requests a party may serve, there is no reason not to exploit this tool to the maximum extent on the facts of any particular case.

Keywords: litigation, business torts, unfair competition, Rule 36, request to admit, request for admission

Fitzgerald T. Bramwell – June 16, 2016