Second-Class Discovery Tool?
When a responding party denies an admission in whole or in part, then the factual issues of the case are significantly narrowed and focused. Unlike other interrogatories, requests for admissions uniquely target facts and opinions of facts. Once an admission is admitted, this constitutes a binding statement under Fed. R. Evid. 801(d)(2) upon the responding party and avoids resorting to other discovery mechanisms and expense. If the request is denied, then resources can be marshaled to address that denial. Nonetheless, requests for admissions are not widely used today for two main reasons: One, courts claim that requests for admissions are not truly a discovery tool and have limited their original effectiveness. And second, the framing of a request for admission is subject to numerous objections, qualifications, and gamesmanship.
Because of these two reasons, requests for admissions have been relegated to a second-class discovery tool. Courts have recited time and again that requests for admissions should not be used as a discovery tool, e.g., Lobo Well Serv. LLC v. Marion Energy Inc., No.. 2:07-cv-273, 2009 WL 3233252, * 1–2 (D. Utah 2009) (“Because Rule 36 was not designed to elicit information, to obtain discovery of the existence of facts, or obtain production of documents, requests for admissions should not be used as a method of discovery for those purposes”) (citing 7-36 Moore’s Federal Practice-Civil § 36.02, (2009)(footnotes omitted)) . Where did this legal principle originate? It did certainly not originate from the Advisory Committee Notes of 1937—that’s when the modern day Federal Rules of Civil Procedure came into existence—or any subsequent Advisory Committee Notes. The shying away from allowing requests for admissions to be a robust discovery tool originates with courts.
The principle that requests for admissions are not a discovery mechanism has been stated over the years as gospel but it has no basis in the history of admissions. Rule 36 made its debut in 1937 in the Federal Rules of Civil Procedure according to the Advisory Committee Notes. Per those notes, requests for admissions were premised upon the old Equity Rule 58, several state rules, and English Rules under the Judicature Act (The Annual Practice, 1937) O. 32. The old Equity Rule 58 was limited to the establishing a document’s authenticity.
Under English law, requests for admissions surfaced well before 1937. The authentication process of documents has its origins in the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76). This type of admission became part of the Judicature Acts, 1873 (36 & 37 Vict. c. 66) and 1875 (38 & 39 Vict. c. 77). The Judicature Act of 1875, Ord. XXXII went further than authentication of documents and seems to be the origin of modern requests for admissions of facts:
Any party to an action may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case state or referred to in the statement of claim, defense or reply of any other party.
1. If a party deny or refuse to admit what he ought to have admitted, a special order may be made as to extra costs occasioned by thereby (Ord. XXII, Rule 4). Allegation in the opposite party’s pleading not denied or strated to be not admitted are to be taken to be admitted (Ord. XIX, Rule 17).
2. Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the court certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give notice is in the opinion of the taxing officer, a saving of expense.
The significance of these historical English law references cannot be gainsaid. Admissions included facts directly at issue in the case. Moreover, a response to a request for admission may be qualified when a simple “admit” or “deny” would be misleading. Thus, the English origins of requests for admissions suggest that they can be used to address any type of fact in a case whether significant or not. This approach seems consistent with the American theory of modern discovery practice: “The purpose of discovery is to provide a mechanism for making relevant information available to the litigants.” Fed. R. Civ. P. 26, Advisory Comments Notes 1983; Anderson v. Cryovac, Inc., 862 F.2d 910, 929 (1st Cir. 1988) (“The purpose of discovery is to ‘make a trial less a game of blindman's buff and more a fair contest with basic issues and facts disclosed to the fullest practicable extent.” (quoting United States v. Procter & Gamble, 356 U.S. 677, 682 (1958))); Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985) (the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible”).
RFAs as Discovery Tools
Requests for admissions are indeed useful tools for discovery. Requests for admissions shorten the discovery process by gaining binding concessions, thus avoiding the time and expense of using other discovery mechanisms to obtain the same result. In addition to obtaining factual concessions, requests for admissions are useful discovery tools in ferreting out disputed facts, enabling the practitioner to devote the appropriate discovery resources to those contested areas.
Despite the value of requests for admissions, framing requests for admissions is like carefully traversing an unmarked minefield. Every objection or qualification imaginable may be interposed by the responding party—reminiscent of Bill Clinton’s deposition on the meaning of “is.”
For example, consider the following objection:
Admit plaintiff’s name is John Smith.
Response: Objection. This admission is vague and ambiguous. Without waiving this objection and with the following qualification, John Smith has been known as John B. Smith, John Billy Smith, Johnny Smith and at times has been identified with a few vulgarities over the years.
Or, this one:
Admit that during the time the Law Firm represented former client, the Law Firm did not receive brokerage statements from ACE Brokerage for Roadrunner Alternative Investments, Ltd.
Response: Law Firm objects to this request on the grounds it is unclear and vague, and further states that it is unable to admit or deny this request. The request does not identify or explain what is meant by “brokerage statements”.
“[T]he answering party is obligated to specify so much of its answer as true and qualify or deny the remainder of the request.” Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 77 (N.D. N.Y. 2003). Qualification is permissible only when it is to cure an “unwarranted and unfair inferences.” Johnstone v. Cronlund, 25 F.R.D. 42, 44 (E.D. Pa. 1960). For example:
Admit you have paid a lawyer $975 an hour.
Response: Admit but only in New York City and not in Mississippi.
This qualification cures the false inference that the responding party has paid a lawyer $975 an hour to a Mississippi lawyer. C.f. Kenneth R. Berman, “Make the First Answer the Best Answer,” 44(3) A.B.A. Litig. (Spring 2018) (discussing that, in a deposition, directly answering the question asked may give rise to an incomplete or inaccurate answer).
Attention to Wording
Careful wording of each request is paramount. Granted, it won’t stop some lawyers with their boilerplate objections. “Requests for admission must be simple, and concise so that they may be admitted or denied with little to no explanation or qualification.” Sommerfield v. City of Chicago, 251 F.R.D. 353, 355 (N.D. Ill. 2008). A request for admission should contain short, simple sentences, written with no adjectives or adverbs. The drafter should be prepared for this discovery gamesmanship by framing the request at one fact at a time and at a third-grade reading level.
Admit that the lawyer charged the client for filing an amended complaint without first securing a court order granting leave.
Admit that John Smith was fired within 24 hours after testifying in court against his employer (Acme Fast Foods).
Some lawyers prefer an elaborate definitional section to assist in this process. Definitional sections may raise additional problems. A reader or listener may not be able follow them. If the admission is read to the fact finder or it is a trial exhibit, the listener or reader may get lost in verbiage. Besides, definitional sections have their own problems of being unduly burdensome. Diversified Products Corp. v. Sports Center Co., 42 F.R.D. 3 (D. Md. 1967). If there is a word or two warranting further specificity, then put the information in parentheses with the admission. This way, the reader does not have to flip back and forth, and the listener has the advantage of having the term defined within the admission.
Be Prepared for Obfuscation
Despite one’s Herculean efforts to keep the admission straightforward and simple, the responding side may engage in obfuscation, especially when being called to task on key facts because of the implications of a simple “admit.” “Requests for admission are not games of 'Battleship' in which the propounding party must guess the precise language coordinates that the responding party deems answerable." SEC v. Goldstone, 300 F.R.D. 505, 515 (D. N.M. 2014). If the meaning is sufficiently clear to a reasonable person, the party responds to the admission in accordance with the Rule 36. Liafail, Inc. v. Learning 2000, Inc., C.A. No. 01-599 and C.A. No. 01-678, 2003 WL 722199, at * 2 (D. Del. Mar. 3, 2003) (when a party understands what information is being sought in a discovery request, but chooses to play "word game[s]" they violate their obligations under Rule 36, and the request should be deemed admitted). Simply put, one does not have to define ad nauseam each and every phrase or word, especially when the meaning is patently obvious.
For example, the plaintiff is trying to prove that the defendant was at a bar and drank too much, causing the accident. These admissions would be framed as follows:
1. Admit Defendant Smith was at Joe’s Bar & Grill on April 4, 2017.
2. Admit that Defendant Smith was administered a blood alcohol test April 4, 2017.
3. Admit that Defendant Smith’s blood alcohol test showed .1% blood alcohol concentration on April 4, 2017.
4. Admit that Defendant Smith drank ten beers at Joe’s Bar & Grill on April 4, 2017.
These example admissions attempt to prove one fact at a time and piggyback on the prior admission. Using this approach identifies the contested facts quickly and efficiently.
The drafter should avoid adjectives, adverbs, or words that may have certain connotations in the request. Using simple, clear language avoids objections contending that the request is “ambiguous,” “vague,” or unwieldy definition sections.
The rewarding aspect of requests for admissions is Rule 37(c)(2). That provision mandates the award of attorney fees and expenses for failure to admit a statement later proven to be true, unless the response to the request was objectionable; the request was of no substantial importance; the party refusing to admit the request had a “reasonable ground” that it would prevail on the matter; or there was other “good reason” for failing to admit the request. If enforced, this provision provides a mechanism for ensuring that justice is done in small-dollar cases where the insurance carrier may wish to expend tremendous sums of money to deter the lawyer from undertaking these cases.
For instance, requests for admission may be an expeditious method to determine which medical bills are at issue in this auto-accident case:
Admit that Dr. Smith’s charges from 1/1/2015 through 12/1/2015 were reasonable for the care and treatment of Mr. Jones arising out of the vehicular accident of 12/10/14.
Admit that Dr. Smith’s charges from 1/1/2015 through 12/1/2015 were necessary for care and treatment of Mr. Jones arising out the vehicular accident of 12/10/14.
Admit St John’s Hospital charges of 1/10/15 were reasonable for the care and treatment of Mr. Jones arising out of the vehicular accident of 12/10/14.
Admit St John’s Hospital charges of 1/10/15 were necessary for the care and treatment of Mr. Jones arising out of the vehicular accident of 12/10/14.
The use of requests for admissions, as shown above, have considerably narrowed matters of proof. Dr. Smith’s bills are no longer at issue but the charges from the hospital are. The next step would be to engage in follow-up discovery to find out why the hospital bills were not admitted. The use of admissions has saved the plaintiff the expense of proving Dr. Smith’s bills and the court time in establishing this proof. And, because the hospital bills were denied and later proven to be reasonable and necessary, the responding party potentially faces payment of attorney fees and costs for the time and expense involved in proving that these statements were true.
Requests for admissions of facts are a great discovery tool. Unlike interrogatories, there is no limit to the number of requests in the Federal Rules of Civil Procedure but there can be a numerical limit imposed by local rules. However, if requests for admissions are used excessively, a court may impose limit or sanctions for abusive discovery tactics. Joseph L. v. Conn. Dep't of Children & Families, 225 F.R.D. 400, 403 (D. Conn. 2005) (finding that 163 requests for admissions, with each having up to 10 subparts, were excessive and abusive); Misco, Inc. v. U.S. Steel Corp., 784 F.2d 198, 206 (6th Cir.1986) (finding that 2,028 requests for admissions were “both an abuse of the discovery process and an improper attempt to circumvent the local district rule which limited the number of interrogatories”). Thus, counsel should use requests for admissions wisely.
Requests for admissions cut to the chase. Requests for admission focus attention to those facts at issue, streamline litigation, and save the parties and the court time and money. Courts and counsel should embrace requests for admissions. Requests for admissions should not be relegated to a second-class discovery tool.
Michael Schwarz is a solo practitioner in Santa Fe, New Mexico.