May 31, 2019 Practice Points

“Gotcha” Waivers in Discovery Are Not Absolute

The failure to respond should not be relied on.

By Michael Roundy

Requests for admission under Rule 36 can be an effective tool in discovery to confirm essential information or to force the opposition to clarify an ambiguous position. The rule also carries the seemingly draconian provision that a matter is deemed admitted unless a timely (within 30 days) written answer or objection is served on the requesting party. That is, a failure to respond is treated under the rules as an admission, which renders the fact “conclusively established.” Fed. R. Civ. P. 36(b).

However, it may not always be that simple. In Dillon v. U.S., a plaintiff served requests for admissions on the government, which inadvertently failed to respond. On the plaintiff’s motion for partial summary judgment, which depended in part on the admission, the defendant/government argued that it would have denied the requested admissions, if it had responded, and moved to withdraw the admission.

The case involved a wage claim under admiralty law. The government’s affirmative defense was that the plaintiff failed to disclose a prior medical condition when he was hired, which related to his premature discharge for a back injury two months later. One of the unanswered requests for admission provided that “Defendant does not contend that it would not have hired Plaintiff if he had given . . . correct responses” about his prior medical condition. This “admission” would have negated the government’s defense.

The court noted that the affirmative defense had been pleaded and had been the focus of the government’s arguments and discovery in the pretrial phase of the case. In addition, the plaintiff had not relied on the admission in conducting discovery—the parties continued to actively conduct discovery on the issue. Thus, because the rules favor resolving cases on the merits, and no undue prejudice would result, the court allowed the government to withdraw the admission, and denied the plaintiff’s summary-judgment motion on the issue.

The lesson here is that while requests for admission are a useful discovery tool, the failure to respond should not be relied on as a “gotcha” admission to be pulled out of your back pocket at the time of trial. Options available to counsel in advance of trial include a motion to deem the matters admitted or a motion to compel responses. Both are likely to force the other side to either admit your requests or justify their denials.

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts. 


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