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October 23, 2018 Practice Points

Whether Statement Is Protected Speech on “Matter of Public Concern” Held Not a Proper Request for Admission of Fact

Can a request for admission under Federal Rule of Civil Procedure 36 call for a legal conclusion?

By Kenneth Duvall

In Davi v. Roberts, the plaintiff claimed that his First Amendment rights were violated by a suspension at work over a social-media posting that was critical of the employer. 2018 WL 4636805 (E.D.N.Y. Sept. 26, 2018). Under Rule 36, the plaintiff requested the defendant to admit that the posting was “on a matter of public concern,” which would trigger First Amendment protection.

But the magistrate judge concluded that the request for admission was improper because it called for a legal conclusion. On review to the district judge, the plaintiff noted that Rule 36 does allow requests to be made for “the application of law to fact.” But citing U.S. Supreme Court and Second Circuit precedent, the court ruled that the particular question of whether speech addresses a matter of public concern is a question of law, and affirmed the magistrate judge’s ruling.

While a request for admission can establish a fact or the application of law to a fact, it cannot establish a point of law. A party propounding requests for admission should avoid asking for the admission of legal, as opposed to factual, contentions, where existing precedent considers the contention to be an issue of law. Conversely, a party responding to a request for admission of legal point may properly object.

Kenneth Duvall is with Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida.

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