CHAPTER 10 - 10-2 Requests for Admission in General
| Jurisdiction | United States |
10-2 Requests for Admission in General
Texas Rule 198 provides for requests for admission3 —a written request propounded by one party to another asking the other to admit or deny the truth of a specific matter "within the scope of discovery, including statements of opinion or of fact or of the application of law to fact, or the genuineness of any documents served with the request or otherwise made available for inspection and copying."4 Like other written-discovery requests, requests for admission must be served no later than thirty days (and in some cases thirty-one or thirty-three days) before the discovery period ends.5
Although Texas Rule 198 is included in the division of the Texas Rules regarding discovery, requests for admission are different from other discovery devices. Unlike depositions, disclosures, interrogatories, and production requests, whose primary purpose is to discover facts or to obtain information and documents, requests for admission were not designed for these purposes. As recently explained by the Texas Supreme Court:
"Requests for admission are a tool, not a trapdoor." They primarily serve "to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove." When used "as intended," requests for admissions are useful in "addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents."6
Because requests for admission were not designed to obtain facts or information, they should not be used for those purposes. For example, they are not "intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense[,]"7 and the Texas Supreme Court has shown great antipathy to requests for admission that asks a party to admit disputed ultimate facts.8 Requests for admissions also should not be used to circumvent rules or discovery-control plans limiting the number of interrogatories.9
10-2:1 Form of Requests for Admissions
Requests for admission, like other written-discovery requests, must be in writing.10 A typical request begins with the statement: "Admit that __________" or "Admit the truth of the following statement: __________."
"Each matter for which an admission is requested must be stated separately."11 Thus, for example, a request for admission cannot ask the responding party to admit every allegation in a pleading.12 Requests for admission should be drafted so that they are simple and concise and can be answered readily by the responding party with a simple admit, deny, or statement that, after reasonable inquiry, the information known or easily obtainable is insufficient to enable the responding party to admit or deny the request.13
Ordinarily the facts to be admitted should be set forth in the request for admission.14 Accordingly, except when the request relates to establishing the authenticity or admissibility of a document, incorporation by reference usually is not permitted.15 This limitation, however, is flexible, and incorporation by reference may be permitted depending on the request's complexity. For example, if the request asks a single, straightforward question about an attached document or one readily available to the responding party, the request likely will be found to be proper.16
Requests for admission may contain definitions and instructions, including an instruction (or warning) that "a failure to timely respond to the requests shall result in each matter being admitted by you and not subject to further dispute." Nonetheless, no definitions, instructions, or warning are required. For example, in Hendler v. North Shore Boat Works, Inc.,17 the plaintiff argued that the trial court improperly granted the defendant summary judgment based on deemed admissions because the requests did not have instructions or warn him about the consequences of not timely answering them.18 In affirming the judgment, the Corpus Christi Court of Appeals held, among other things, that no instructions or warning were needed because Texas Rule 198.1 "does not specify the precise form the [requests for] admission should take, other than that each matter for which an admission is requested should be stated separately."19
Like other written-discovery devices, requests for admission are not filed,20 but must be served on all parties to the action.21 In addition, the parties "must retain the original or exact copy of [the requests] during the pendency of the case and any related appellate proceedings begun within six months after judgment is signed, unless otherwise provided by the trial court."22
10-2:2 Scope of Requests for Admission
Requests for admission may inquire about any discoverable matter other than matters covered by Texas Rule 195, which relates to testifying experts.23 Thus, they are an inexpensive method of discovery and, when properly worded, can be an effective way to narrow the issues, to establish undisputed facts, and to authenticate documents and establish the evidentiary foundation for their admissibility.
10-2:2.1 Statements of Fact or Opinion or the Application of Law to Fact
By Texas Rule 198.1's express language, requests can properly seek admissions about (1) "statements of opinion[,]" (2) statements of . . . fact[,]" or (3) the "application of law to fact."24 Although requests for admission applying law to fact are permissible, requests regarding pure questions or conclusions of law are not.25 However, because Texas Rule 197.1 specifically permits a party to ask another party if it is making a "specific legal or factual contention,"26 it is proper to ask a party about its legal contentions or the factual bases for them. Accordingly, the requesting party properly can request the responding party to admit that it is, or is not, asserting a particular cause of action or affirmative defense or to admit that its cause of action or defense is, or is not, based on specified facts.
Admissions of law are not binding on the court and have no legal effect or evidentiary value.27 The distinction between a request for an admission of law and one for the application of law to fact often is not obvious.28 One way to determine if the request asks for the application of law to fact is to review the pertinent Texas pattern jury charge on the issue. If it is one that the jury would decide, it clearly is not a pure question of law.
Because requests for admission can ask questions regarding the application of law to fact, they, in theory, can seek admissions about the ultimate factual issue(s) in the action, such as whether the responding party breached the contract at issue, misappropriated the trade secrets or confidential information at issue, violated the covenant not to compete at issue, or was negligent.29 Generally, however, there is little to be gained from asking such requests because they invariably will be denied.30
In reality, requests for admission are most effectively used to confirm incidental but important facts in the action, such as the parties' relationship (e.g., employer-employee, independent contractor, agent-principal, manufacturer-distributor); the identity of a property's owner, lessor, or lessee; whether a relevant contract was entered into; the validity of signatures on a contract or other documents; whether a required demand or notice has been made or whether it was timely; whether a relevant meeting or conversation occurred at all or on a specific date or at a particular place; or a meeting's or conversation's participants or subject matter. Requests for admission also can ask for admissions about facts bearing on the court's jurisdiction.31
10-2:2.2 Mirror-Image (or Converse) Requests for Admission
A requesting party often will pair a request for admission with its opposite. For example, one request might ask the responding party to admit that "Smith was your employee when the accident occurred," whereas another request might ask it to admit the converse, "Smith was not your employee when the accident occurred." Although there is nothing inherently improper about such "mirror-image" or "converse" requests,32 mirror-image admissions, which result if the responding party fails to respond to the requests33 or admits both requests, are useless because they create a fact issue. As explained by the Houston (Fourteenth) Court of Appeals in CEBI Metal Sanayi Ve Ticaret A.S. v. Garcia:
Summary judgment is appropriate only if no fact questions exist after resolving all doubts in the nonmovant's favor. Normally, admissions (whether admitted or deemed) serve this purpose, as they conclusively establish the facts stated therein. But because each of Garcia's requests was paired with its opposite, they conclusively established every proposition and its opposite as well. When all were deemed admitted, they created fact questions rather than resolving them.
Garcia cannot avoid this conflict by relying on half of his requests. We cannot pick and choose among controverted facts in a summary judgment record, and these admissions became part of that record when they were filed. Nor could Garcia have arranged for half the requests to be deemed admitted and the other half quietly ignored, as deeming occurs automatically without either motion or order.34
Until the Texas Supreme Court determines the effect of deemed mirror-image requests for admission, a prudent party served with such requests should not rely on the foregoing reasoning and simply fail to respond to the requests.
10-2:2.3 Genuineness of Documents
Requests for admission can expedite the trial process by establishing evidentiary foundations for documents that would otherwise consume considerable trial time.35 It is not, however, enough to ask the responding party to admit that a document is genuine (i.e., authentic);36 rather, the requesting party also should ensure that all foun-dational questions needed for the document's admission into evidence are...
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