§36.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§36.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

Counsel should keep in mind the following strategic and practical considerations regarding requests for admission.

(1) Use of CR 36

The primary purpose of CR 36 is to minimize the expense of proving facts that should not be disputed at trial. Thus, requests for admission should be liberally used to eliminate issues that are not genuinely in dispute and for which it should not be necessary to introduce witnesses or documents at trial.

Aresponding party exercising good faith must decide in a short period of time how to respond to requests for admission. The rule is designed to minimize the opportunity for evasive answers and requires the responding party to exercise good faith to meet directly the substance of requested admissions. When a party is unable to admit or deny, it is required to explain in detail the reasons for such a response. Before responding, the party to whom requests are addressed must make a reasonable inquiry regarding information known to or readily obtainable by the party.

Practice Tip: Routinely serve requests for admission after initial investigation and discovery have revealed the operative facts, but early enough so that if the request is denied you will have time to obtain the necessary proof for trial. This means that you must have enough time to make a motion, obtain a ruling from the court as to the sufficiency of the answers, wait for an amended response if the court so orders, and have enough time remaining before trial to marshal your evidence. Remember that it is the requesting party who is obligated to obtain a ruling from the court if an objection is made to a request.

Practice Tip: If your case is subject to a pretrial discovery schedule ensure that the order or stipulation clarifies whether requests for admission are subject to the same cutoff date as other discovery. Some courts have heot subject to pretrial cutoff dates because they are not true discovery devices. Hurt v. Coyne Cylinder Co., 124 F.R.D. 614 (W.D. Tenn. 1989).

(2)Drafting requests for admission

Use extreme precision in drafting requests for admission. Generally, you should limit requests to a single proposition and exercise care to avoid "subjective" and "legal" terms that may leave room for argument and denials.

In drafting requests for admission, you should also keep in mind the sanctions provisions of CR 36(a) and CR 37. CR 37(a)(4) and CR 37(c) provide for awarding expenses, including reasonable attorney fees, for inappropriate responses to requests for admission.

The problems inherent with CR 36 mean that the indiscriminate use of requests for admission should be avoided. CR 36 is not an effective discovery tool. Unless you reasonably believe that the subject of a potential request for admission is not in dispute, you should not propound it. If you know that a dispute exists regarding a factual matter, do not try to "finesse" an admission; instead use a discovery device such as CR 30 or CR 33. Simply stated, you should use CR 36 as a device to eliminate from trial facts that are not in dispute involving matters that fair-minded lawyers and judges generally would agree should not take up valuable trial time.

(3)Authentication of the genuineness of documents

CR 36 can be used as an effective device to streamline trial and cases involving many documents. During discovery, you can use CR 36 to avoid the expense of pretrial depositions for the primary purpose of establishing the genuineness of documents. An admission regarding the genuineness of a document means that it is authentic and is what it purports to be. Further, you can use CR 36 to overcome evidentiary hurdles associated with documents. For...