Requests for Admission: The Forgotten Weapon in the Litigator's Arsenal

Rule 36 of the Federal Rules of Civil Procedure provides a procedure by which a party may request that another party "admit for the purposes of the pending action . . . the truth of any matters within the scope of Rule 26(b)(1)." Fed. R. Civ. P. 36(a)(1). Requests for admissions (RFA) may relate to "facts, the application of the law to fact, or opinions about either and the genuineness of documents." Fed. R. Civ. P. 36(a)(1)(A–B). The purpose of a request for admission is to "reduce trial time." Fed. R. Civ. P. 36 advisory committee's notes. Admissions reduce time at trial because they ". . . facilitate proof with respect to issues that cannot be eliminated from the case," and "narrow the issues by eliminating those [issues] that can be [eliminated]." Id.

Well drafted and appropriately timed requests for admissions are an effective way to expedite and simplify litigation. Requests sough­t early in discovery help to establish the strengths of your case and identify the weaknesses of your opponent's case. Admissions sought near the close of discovery establish facts that form the basis of a summary judgment motion and can be effectively used in settlement negotiations and cross-examination at trial. Admissions help reduce litigation costs by eliminating the need for attorney time and lengthy discovery procedures to establish undisputed facts or the authenticity of documents during discovery or at trial. Ultimately, admissions help parties narrow the issues for trial, better define the claims at issue, and promote judicial economy. Despite their many beneficial uses, RFAs are often overlooked in favor of more traditional discovery tools. This article provides an overview of Rule 36, effective ways to use RFAs, and how to avoid common pitfalls of using them.

Rule 36 Requests for Admissions as Discovery Tool, a Misnomer

Although Rule 26 lists RFAs as a means of obtaining discovery and Rule 36 is included in the chapter of the Federal Rules of Civil Procedure that governs depositions and discovery, Rule 36 RFAs are not, for all practical purposes, discovery tools. See Fed. R. Civ. P. 26(a)(5); Fed. R. Civ.P. Title V; RLA Mktg. v. Wham-O, Inc., No. 04-3442, 2007 U.S. Dist. LEXIS 16629, 12–13 (D.N.J. Mar. 5, 2007). Requests for admission, unlike traditional discovery tools, "are not used to ascertain whether information exists." Hart v. Dow Chem., No. 95 C 1811, 1998 U.S. Dist. LEXIS 3997, 8 (N.D. Ill. Mar. 25, 1998). Instead, RFAs "eliminate issues from contention at trial and expedite the litigation process." Id. "Strictly speaking Rule 36 is not a discovery procedure at all, since it presupposes that the party proceeding under it knows the facts or has the document and merely wishes its opponent to concede its genuineness." Vincent v. C.O. M. House, No. 07CV632A, 2009 U.S. Dist. LEXIS 80776, 8–9 (W.D.N.Y. Sept. 4, 2009). Ultimately, RFAs establish known facts, while traditional discovery tools, such as interrogatories or requests for production of documents are used to discover facts not yet known.

Scope of Requests for Admissions

The scope of what can be requested by RFAs is as expansive as traditional discovery devices. Requests for admission are only limited to those matters "within the scope of Rule 26(b)(1)." Fed. R. Civ. P. 36(a)(1). Rule 26 defines the scope of discovery broadly and allows a party to obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). However, the court may, for good cause, "order discovery of any matter relevant to the subject matter involved in the action." Id.

Requests for admission are subject to all admissibility objections that might be raised at trial. Corbett v. Tejas Tongs, Inc., No. 97-10977, 1998 U.S. App. LEXIS 39989, 6–7 (5th Cir. Tex. June 2, 1998) (citing Walsh v. McCain Foods, Ltd., 81 F.3d 722, 726 (7th Cir. 1996) ("Admissions obtained under Rule 36 may be offered in evidence at the trial of the action, but they are subject to all pertinent objections to admissibility that may be interposed at the trial…."). However, a party may not object to a request for admission "solely on the ground that the request presents a genuine issue for trial." Fed. R. Civ. P. 36(a)(5).

Form of Requests for Admission

Each matter that the requesting party seeks to have the responding party admit must "be separately stated." Fed. R. Civ. P. 36(a)(2). The statement of the fact to be admitted "should be in simple and concise terms" so that it "can be denied or admitted with an absolute minimum of explanation or qualification." Loucas v. Cunningham (In re Cunningham), No. 14-15010, 2015 Bankr. LEXIS 672, 16 (Bankr. E.D. Pa. Mar. 4, 2015). The responding party should be able to answer "yes, no, the answerer does not know, or a very simple direct explanation given as to why he cannot answer." Id. A request that seeks admission of more than one matter fails to comply with Rule 36. Dole v. Carroll, No. 1:12-cv-24, 2013 U.S. Dist. LEXIS 164521, 4 (D. Vt. Nov. 18, 2013). If a request for admission seeks admission of more than one matter, the court will typically deny a motion to deem the request admitted. Id; see eg Grand River Enter. Six Nations, Ltd. v. King, 2009 U.S. Dist. LEXIS 12896, 24 (S.D.N.Y. Feb. 13, 2009).

Timing of Requests for Admission

While RFAs are not traditional discovery tools, a party may not serve one before a Rule 26 scheduling order has been issued and a party may not seek an admission after discovery is closed. Staton v. Connecticut, No. 3:08-cv-142, 2009 U.S. Dist. LEXIS 109061, 8 (D. Conn. Nov. 19, 2009); Grand River Enter. Six Nations, Ltd. v. King, No. 02 Civ. 5068, 2009 U.S. Dist. LEXIS 12896, 24–25 (S.D.N.Y. Feb. 13, 2009).

Timing of Responses

If a party who is served with requests for admissions fails to respond to the requests within 30 days of being served, the requests are deemed admitted and conclusively established unless the court, on motion, allows the admissions to be amended or withdrawn. Fed. R. Civ. P. 36(a)(3); Fed. R. Civ. P. 36(b); Bailey v. Christian Broad. Network, 483 F. App'x 808, 809–10 (4th Cir. 2012). The parties may stipulate to different timing for responses, and the court may also order different timing for responses. Id.

Burden on Responding Party

The responding party must admit or deny each request or "state in detail why the answering party cannot truthfully admit or deny it." Fed. R. Civ. P. 36(a)(4); Tustin v. Motorists Mut. Ins. Co., No. 5:08-CV-111, 2009 U.S. Dist. LEXIS 95947, 6–7 (N.D. W. Va. Oct. 14, 2009). A denial must "fairly respond to the substance of the matter;" and "when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest." Fed. R. Civ. P. 36(a)(4). Although disfavored, the responding party "may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states 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." Id (emphasis added). Ultimately, the answering party must conduct a reasonable inquiry and answer an RFA if the information is readily obtainable, "even though the answering party has no personal knowledge of the facts." Tustin v. Motorists Mut. Ins. Co., No. 5:08-CV-111, 2009 U.S. Dist. LEXIS 95947, 6-7 (N.D. W. Va. Oct. 14, 2009).

The Fourth Circuit has stated "that a denial of the accuracy of a statement is not a denial of its essential truth. . . ." Southern Ry. Co. v. Crosby, 201 F.2d 878, 880 (4th Cir. 1953). The Fourth Circuit elaborated:

The admissions or denials must be forthright, specific, and unqualified. A denial coupled with a general exception of doubtful import, will constitute an admission. A refusal to admit without specific denial or detailed reasons why the respondent cannot truthfully admit or deny, is the equivalent of an admission.

Id. (citing Barron & Holtzoff, Federal Practice and Procedure, Rules Edition).

Effect of Response or a Failure to Respond

An admission, unless withdrawn, "goes beyond being mere evidence" Vincent v. C.O. M. House, No. 07CV632A, 2009 U.S. Dist. LEXIS 80776, 8 (W.D.N.Y. Sept. 4, 2009). A request, if admitted, "is conclusive of the matter and avoids the need for proof [of that matter] at trial." Id. The requesting party need not make additional discovery regarding that matter nor will evidence of the matter need to be established at trial. Courts will also reject submission of evidence that contradicts matters already admitted. However the court, on motion, may allow the admission to be withdrawn or amended, if withdrawal or amendment (1) would promote the presentation of the merits of the action and if (2) the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. Fed. R. Civ. P. 36(b). A Rule 36 admission is only an admission for the matter in which the admission is sought and is not an admission for any other purpose or any other proceding. Id.

If the party on whom an RFA is served fails to respond to the request within 30 days or the timeframe agreed on by the parties or ordered by the court, the matters sought to be admitted are deemed admitted. Fed. R. Civ. P. 36(a)(3); Loucas v. Cunningham (In re Cunningham), No. 14-15010, 2015 Bankr. LEXIS 672, 20–21 (Bankr. E.D. Pa. Mar. 4, 2015). In Loucas, the plaintiff's failure to respond to RFAs within 30 days from the date of service, to offer explanation as to why they did not respond, to seek relief from the time limit, and then apparently proceeding to serve a belated reply, resulted in admissions of the facts alleged. Id.

The Court's Enforcement Authority

Courts have broad discretion to deem matters admitted. A requesting party may also move the court "to determine the sufficiency of an answer or objection." Fed. R. Civ. P 36(a)(6). Unless the court finds an objection justified, "it must order that an answer be served." Id. If the court determines that an answer does not comply with Rule 36, "the court may order either that the matter is admitted or that an amended answer be served." Id. When the responding party's responses are nonresponsive or evasive, courts often deem the matters admitted. Sampayo Climaco Y Asociados Despacho Juridico Internacional v. Cantu (In re Cantu), No. 08-70260, 2009 Bankr. LEXIS 1170, 12 (Bankr. S.D. Tex. May 4, 2009); Tustin v. Motorists Mut. Ins. Co., No. 5:08-CV-111, 2009 U.S. Dist. LEXIS 95947, 7–8 (N.D. W. Va. Oct. 14, 2009); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2009 U.S. Dist. LEXIS 45621, 15 (S.D.N.Y. May 21, 2009). While courts recognize the harsh result of matters being deemed admitted, they reason that "[t]he failure to properly respond to admissions can effectively deprive a party of the opportunity to contest the merits of a case." Sampayo Climaco Y Asociados Despacho Juridico Internacional v. Cantu (In re Cantu), No. 08-70260, 2009 Bankr. LEXIS 1170, 12–13 (Bankr. S.D. Tex. May 4, 2009). This result is necessary, therefore, "to insure the orderly disposition of cases." Id.

Also, if a party fails to admit a matter and the requesting party later proves the authenticity of a document or the truth of a matter, the court may order the responding party to pay the reasonable expenses incurred proving the matters or the authenticity of the documents, including attorney fees. Fed. R. Civ. P. 37(c)(2).

Best Ways to Use Admissions

Requests for admission are most effectively used to eliminate wasted time on obvious undisputed facts and documents. Always consider how admissions might be used to establish undisputed facts or authenticate documents that are essential to your case. This will free up time and effort to focus on matters that are truly in dispute.Admissions can also be used to pin down evasive discovery responses. If your opponent's responses to your requests for production of documents, interrogatories, or other discovery requests are deficient, consider using RFAs. This is a particularly effective strategy to use in advance of party depositions. By focusing on the key issues in dispute, it becomes exceedingly difficult for parties to claim confusion or misunderstanding.

Additionally, admissions are an effective tool for cross-examination. Whether a party has admitted the request or the court has deemed the request admitted, it is highly effective to highlight the request for admission when cross-examining a witness at trial. When using RFAs at trial, do not forget to request a judicial instruction explaining the role of requests for admissions to the jury. Always use RFAs to establish the factual background that bolsters the strengths of your case. This will put you in a better negotiating position for settlement and support motions for summary judgment.

Time your RFAs strategically. Requests for admission served early in litigation will help probe the weaknesses in the case and nail down preliminary facts. Early admissions used effectively could also prompt early settlement. Admissions can be used leading up to a summary judgment motion or following a deposition to nail down testimony. Serving admissions close to the end of discovery will make it hard for your opponent to deny the admission because of lack of information. Also, be mindful of your opponent's failure to timely respond to your requests.If your opponent misses the deadline, you should immediately move the court to deem the matters admitted.

How to Avoid Common Pitfalls of Using Requests for Admissions

Use RFAs for their intended purpose. Don't focus admissions on tangential immaterial matters. Use requests for admissions to establish or refute essential elements of the claims at issue in your case. Pattern jury instructions are a good place to look to determine what facts need to be established or refuted. Once you determine which facts are material, focus on undisputed facts. Don't waste time requesting admissions of disputed matters. Also, remember that precise requests are most effective. Simple, precise, and unambiguous requests better withstand objections and are more difficult for your opponent to evade an unequivocal admission.

Conclusion

Requests for admission are a useful yet neglected tool. If used properly, admissions create irrefutable evidence that can form the basis of a summary judgment motion or that can be effectively used in settlement negotiations and at trial. Admissions also help expedite and simplify litigation by narrowing and eliminating issues for trial and reducing the time and cost of litigation.