CHAPTER 10 - 10-7 Withdrawal, Supplementation, or Amendment of Responses to Requests for Admission

• Jurisdiction: United States

10-7 Withdrawal, Supplementation, or Amendment of Responses to Requests for Admission

According to Texas Rule 193.5, a responding party is under a duty to amend or supplement a written-discovery response if it learns that it "was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct[.]"²¹¹ This obligation seemingly is inconsistent with Texas Rule 198.3, which requires court permission to withdraw or amend an admission:

A matter admitted under this rule is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission. The court may permit the party to withdraw or amend the admission if:

(a) the party shows good cause for the withdrawal or amendment; and

(b) the court finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved by permitting the party to amend or withdraw the admission.²¹²

Although Texas Rule 198.3's specific limitation controls Texas Rule 193.5's general rule, the two rules can be reconciled by interpreting them so that a responding party has a duty to promptly seek to file a motion to amend a response to a request for admission when Texas Rule 193.5 imposes such a duty, but it may not do so unilaterally and must satisfy the court that Texas Rule 198.3's requirements are met.

Because Texas Rule 198.3 only applies to admissions, there is no problem applying Texas Rule 193.5's requirement to a denial or an inability to admit or deny. Accordingly, if the responding party obtains new information creating a duty to amend or supplement with respect to such a response, it must do so reasonably promptly after it discovers the need for the amendment or supplement and need not obtain leave of court before doing so.²¹³

Texas Rule 198.3 sets forth three requirements for the withdrawal or amendment of an admission: (1) good cause for the withdrawal or amendment, (2) no undue prejudice to the requesting party from the withdrawal or amendment, and (3) the presentation of the action's merits will be subserved by the withdrawal or amendment.²¹⁴ The responding party has the burden of proof on all three elements.²¹⁵ Moreover, the test applies to both express and deemed admissions.²¹⁶

"A trial court has broad discretion to permit or deny the withdrawal of deemed admissions."²¹⁷ Accordingly, on appeal, its ruling is reviewed for an abuse of discre-tion.²¹⁸ A trial court, however, cannot order the withdrawal or amendment of deemed admissions on its own motion.²¹⁹ Moreover, a responding party may not seek withdrawal of deemed admissions after judgment in a motion for new trial, if the party realized its mistake before judgment and, therefore, had other avenues for relief available.²²⁰

10-7:1 Good Cause

"[G]ood cause is established by showing the failure [to timely respond or the mistaken answer] was an accident or mistake, not intentional or the result of conscious indifference."²²¹ As one court explained:

In deciding whether a failure to timely answer was the result of an accident or mistake, the controlling issue is the absence of purposefulness or bad faith failure to answer which reflects conscious indifference. Consequently, even a slight excuse will suffice, especially when the delay or prejudice will not result against the opposing party. An accident or mistake upon the part of counsel may constitute negligence . . . but it will not necessarily constitute conscious indifference.²²²

The following have been found to constitute good cause for the withdrawal or amendment of deemed admissions: (1) a mistake in calculating the time to serve the response;²²³ (2) an inadvertent failure to docket the response date;²²⁴ (3) an inadvertent failure to serve responses after they were timely prepared;²²⁵ (4) an inadvertent failure to respond because the client was ill and the attorney was out-of-state;²²⁶ (5) a party's inadvertent failure to respond to requests for admission served on multiple parties represented by the same attorney;²²⁷ and (6) an inadvertent failure to respond because of a substitution of counsel.²²⁸

Neither a busy schedule nor reliance on an oral agreement to extend the time to respond, however, constitutes good cause for the withdrawal of a deemed admis-sion.²²⁹ Moreover, good cause does not exist when the responding party does not act promptly to move to withdraw or amend the admission after it discovers the need to do so.²³⁰

10-7:2 Undue Prejudice

"Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it."²³¹ As explained by one federal court: "The prejudice contemplated by [Federal Rule 36] is not simply that the party who obtained the admission will now have to convince the factfinder of the truth; rather, it relates to the difficulty a party may face in proving its case, for example by the unavailability of key witnesses in light of the delay."²³²

Accordingly, the mere fact that the requesting party will have to prove the matters previously admitted or even that it will incur significant expense in conducting the additional discovery needed to replace the withdrawn or amended admission does not constitute prejudice.²³³ Similarly, the requesting party's reliance on an admission in moving for summary judgment generally does not constitute undue prejudice.²³⁴

A requesting party, however, cannot "lie behind the log" and create undue prejudice. Thus, for example, if responses to requests for admissions were served late, but while there was adequate time to conduct discovery, the requesting party cannot simply decline to take discovery and then claim that it relied on the deemed admission and has been unduly prejudiced.²³⁵ Nonetheless, where the moving party waits until shortly before trial to file its withdrawal motion, undue prejudice likely will be found.²³⁶

10-7:3 Merits Would Be "Subserved"

The withdrawal of an admission "subserves" the presentation of the action's merits when upholding the admission would practically or effectively eliminate presentation of the action's merits.²³⁷

10-7:4 Withdrawal of Merits-Preclusive Deemed Admissions

Although Texas Rule 198.3 does not distinguish between merits-preclusive and non-merits-preclusive deemed admissions,²³⁸ Texas courts do so. Because Texas Rule 198.2(c) automatically deems a request admitted if the responding party fails to respond timely,²³⁹ the Rule essentially imposes an automatic sanction.²⁴⁰ Accordingly, the Texas Supreme Court consistently has held that when deemed admissions are merits-preclusive, they are subject to the long-standing due-process principles applicable to other judicially-imposed, death-penalty sanctions and must be set aside "absent flagrant bad faith or callous disregard for the rules," provided the requesting party is not unduly prejudiced by the withdrawal.²⁴¹ As recently explained by the Court:

When a deemed admission arises from a merits-preclusive request—one in which the requestor essentially seeks an admission of liability—the deemed admission can amount to a death-penalty sanction. But we have recognized that due process limits the application of this rule. In short, "there are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause."

"When requests for admissions are used as intended—addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents—deeming admissions by default is unlikely to compromise presentation of the merits." But a deemed admission that precludes a defendant from contesting the validity of the plaintiff's claims or that forces him to concede his defenses, wields a result more severe than our rules intend or that due process will tolerate. Our cases on this point are not constitutional holdings per se, but rather reflect judicially created prophylactic measures designed to ensure that our rules of civil procedure—rules this Court promulgated—are not applied in a way that risks violating due process.²⁴²

Although a party moving to withdraw a deemed admission generally has the burden of showing good cause, when the request for admission is a merits-preclusive one, the party opposing the admission's withdrawal has the burden to show that the party seeking the withdrawal acted with bad faith or callous disregard of the rules.²⁴³ "Bad faith is the conscious doing of a wrong for dishonest, discriminatory, or malicious purpose. A determination of bad faith or callous disregard can be made when a party is mindful of pending deadlines and nonetheless either consciously or flagrantly fails to comply with the rules."²⁴⁴

"Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it."²⁴⁵

Finally, in the case of merits-preclusive admissions, the presentation of the merits is not served because "the case [will be] decided on deemed (but perhaps untrue) facts[.]"²⁴⁶

A trial court's failure to allow the withdrawal of merits-preclusive admissions is reviewable by mandamus.²⁴⁷

Not only must a trial court allow a party to withdraw a merits-preclusive admission (absent flagrant bad faith or callous disregard for the rules and a lack of prejudice to the non-responding party) but the court also generally cannot properly impose sanctions against the responding party under Texas Rule 215.4, the admit-or-pay rule,²⁴⁸ for denying such requests even if it, contrary to its admissions, later admits liability.²⁴⁹

10-7:5 Use of Withdrawn or Amended Admissions

The general rule regarding a withdrawn pleading is that it is no longer a conclusive judicial...