CHAPTER 10 - 10-4 Number of Requests for Admission

• Jurisdiction: United States

10-4 Number of Requests for Admission

The action's discovery-control plan, rather than Texas Rule 198, governs the number of requests for admission.⁴³ In Level 1 actions, each party is limited to fifteen requests for admission, including "discrete subpart[s]."⁴⁴ In contrast, the Texas discovery rules do not limit either the number of requests for admission or the number of sets of requests for admission in Level 2 and 3 actions.⁴⁵

As pointed out above, under Texas Rule 190.1, the limit on the number of requests for admission in a Level 1 action includes "[e]ach discrete subpart."⁴⁶ Although nothing in Texas Rule 190 or its comments explains what constitutes a discrete subpart for a request for admission, Comment 3 to Texas Rule 190 explains what constitutes a discrete subpart for an interrogatory: "While not susceptible of precise definition, a 'discrete subpart' is, in general, one that calls for information that is not logically or factually related to the primary interrogatory." The test should be same as that with respect to interrogatories.⁴⁷

Although the Texas discovery rules do not limit the number of requests for admission in Level 2 and 3 actions, Texas Rules 192.4 and 192.6 allow a court to limit their number when (1) the requests are "unreasonably cumulative or duplicative" of other discovery requests,⁴⁸ harassing, annoying, or invasive of personal, constitutional, or property rights,⁴⁹ (2) the information "sought is obtainable from some other source that is more convenient, less burdensome, or less expensive,"⁵⁰ or (3) "the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues" (i.e., they are disproportionate to the action's needs).⁵¹ Whether a party has served too many requests for admission depends on the action's complexity.⁵² In other words, the issue is determined on a case-by-case basis.⁵³

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Notes:

^[43] Tex. R. Civ. P. 190 (providing for three discovery levels: Levels 1, 2, and 3). See Chapter 2, section 2-3 (discussing the three discovery levels).

^[44] Tex. R. Civ. P. 190.2(b)(5). Texas Rule 190.2(b)(5)'s "discrete subpart" provision appears to conflict with the requirement in Texas Rule 198.1 that "[e]ach matter for which an admission is requested must be stated separately." The rules can be reconciled by interpreting the former as giving the responding party the option of answering a compound request and counting it as multiple requests against the 15-request limit rather than objecting to it. See Chapter 10, section 10-5:8.11 (discussing compound objections to requests for admission).

There is no limitation on the number of sets for requests for admission in a Level 1 action so long as the total number of requests does not exceed fifteen. See Tex. R. Civ. P. 190.2(b)(5).

^[45] Tex. R. Civ. P. 190.3-190.4. A Level 3 discovery-control order can limit the number of requests for admission. Tex. R. Civ. P. 190.4(b)(3) (allowing the court to place "appropriate limits on the amount of discovery").

^[46] Tex. R. Civ. P. 190.2(b)(5).

^[47] See Chapter 9, section 9-4 (discussing what constitutes a discrete interrogatory subpart). In Gamevice, Inc. v. Nintendo Co., No. 18-cv-01942-RS (TSH), 2019 U.S. Dist. LEXIS 143917 (N.D. Cal. Aug. 23, 2019), a federal magistrate judge decided whether a defendant's requests for admission violated the district judge's order limiting the parties to forty-five such requests. In doing so, the magistrate judge provided an excellent explanation of what constitutes a discrete subpart in the context of requests for admission:

Some of the RFAs are more complicated, even though they follow the same structure. Gamevice highlights RFA 5 as an example. It asks Gamevice to "[a]dmit that the keytop of each of the 'shoulder buttons' and 'trigger buttons' on the GV157, GV157A, GV167, GV169, and GV189 rotates about a point provided at a position at an end of the keytop further from the horizontal center of the device." It asks Gamevice to admit that five of its devices have this feature in common.

Gamevice's first objection to these RFAs is that they are compound and violate Judge Seeborg's order that each side is limited to 45 RFAs (other than for authentication purposes). Gamevice's theory is

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