September 14, 2018 civil procedure

A Skeptical View of Rule 36

By Charles S. Fax

In the Spring 2018 edition of Litigation News, I inveighed against the widespread practice of lawyers filing boilerplate objections to Rule 33 and Rule 34 discovery requests. Boilerplate objections are themselves objectionable (I listed the most common ones), carry no legal weight, and will waive legitimate objections that are not made. In this, my final column for Litigation News (more on that below), I address the same issue in the “final” discovery rule, Rule 36, Requests for Admission (RFAs).

Strictly speaking, RFAs are not a discovery device, but rather, a way to synthesize discovery already obtained, in anticipation of a motion for summary judgment or trial. RFAs to confirm the authenticity of documents are routine, and quite effective in achieving their purpose—avoidance of the cost of proving authenticity by extrinsic evidence. RFAs to confirm facts are trickier, however, and in my experience, often not worth the effort. A bulletproof RFA relies on an adverse party’s admission or an unchallenged fact elicited from a witness or document. But if you’ve already made the record, why not rely on that—why bother to file RFAs? And if the fact as to which you are seeking an admission is controverted or not established, your adversary will deny it.

Denial of an RFA of a fact later proven at trial is, however, grounds for, sanctions in the form of attorneys’ fees and expenses under Rule 37(c)(2), but there are loopholes to that provision. Sanctions will not be awarded if (a) the RFA was held objectionable; (b) the admission sought was of no substantial importance, (c) the party failing to admit had a reasonable ground to believe it that it might prevail on the matter; or (d) there was other good reason for the failure to admit. A creative attorney should be able to argue these exceptions effectively. Thus, the theoretical availability of sanctions may not be an effective deterrent to denial or obfuscation in response to an RFA. Couple that with the reality that well over 90 percent of civil cases never reach trial (and thus the court never rules on whether the fact sought to be admitted by the RFA was proven), and the possibility of sanctions becomes even less of a deterrent to mischief.

Affirmative obfuscation (as opposed to simply ignoring the RFAs, which will cause them to be deemed admitted) can take at least two forms—objections and circumlocution in the answer. Of course, an objection, to be effective, must be specific to the challenged RFA: As with Rule 33 and Rule 34, general objections to RFAs are meaningless. Similarly, an objection on the ground of undue burdensomeness, vagueness, overbreadth and the like is ineffective unless the respondent explains why the RFA is objectionable on that ground. And it is axiomatic that an objection on the ground that the proponent has the burden of proof at trial is nugatory, as the very purpose of the rule is to avoid the necessity of proof of facts that should be undisputed. A good lawyer, however, will be able to finesse the factual context to state proper objections.

A denial of an RFA on the ground that the respondent “lacks knowledge or information sufficient to form a belief about the truth” of the request (language that Rule 7 endorses in answer to a complaint) will not wash in response to an RFA. Under Rule 36(a)(4), the respondent must also state that “it has made reasonable inquiry, and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Answering that the admission requested may be found in discovery previously provided is inadequate, because it shows that the respondent has made reasonable inquiry and knows the response, but refuses to give it. While improper objections or inadequate answers may trigger a motion to compel, that just prolongs the process, increases expense, and often does not lead to a satisfactory result. For all of these reasons, call me a skeptic when it comes to RFAs of facts.

I am not a skeptic, however, when it comes to the value of Litigation News, which I have proudly served as a columnist for over ten years. The writers are first rate, the articles are consistently helpful, and I look forward to each issue with anticipation. But I have decided that it is time for me to cede my space to others. Of course, I will continue to be an avid reader, and I hope you will, too. Farewell.

 

Charles S. Fax is an associate editor for Litigation News.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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