Requests for admission

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 309-332

HANDLING FEDERAL DISCOVERY

CHAPTER 10: REQUESTS

FOR ADMISSION

TASKS

Task 52 Propound Requests for Admission

Task 53 Respond to Requests for Admission

Task 54 Determine Whether Responses Are Sufficient

Task 55 Withdraw or Amend Admissions

Task 56 Cure Deemed Admissions After Default

FORMS

Form 18 Requests for Admission

Form 19 Responses to Requests for Admission

Form 20 Memorandum in Support of Motion

TASK 52

Propound Requests for Admission

I. WHAT AND WHY

A. A request for admission under FRCP 36(a)(1) is a statement in the form, “Admit that...,” which any party

can use to ask any other party to admit the truth of any:

1. Fact: “Admit that you owned the automobile on the day of the accident.” S.E.C. v. Goldstone, 300 F.R.D.

505 (D.N.M. 2014) (request to admit that corporate officer had information that was not provided to

corporate auditors sought factual information within officer’s personal knowledge).

2. Opinion: “Admit that you believed defendant owned the automobile in question.”

3. Application of law to fact: “Admit that California law required you to stop before making your right

turn.” In re Rail Freight Fuel Surcharge Antitrust Litigation, 81 Fed. Rules Serv. 3d 105 (D.D.C. 2011)

(requests asking party to admit that if a certain fact or factual situation did or did not exist, a certain

outcome or legal conclusion would follow, are proper).

4. Genuineness of documents: “Admit that the document attached as Exhibit A is a true and correct copy

of your 1995 financial statement.”

5. Admissibility of documents: “Admit that the document attached as Exhibit A was prepared by defendant

corporation in the ordinary course of its business.”

B. Requests for admission are powerful discovery tools. Use them to:

10-1

TASK 52 REQUESTS FOR ADMISSION

10-2

1. Narrow the focus of your case. ARP v. Amezaga (In re Amezaga), 195 B.R. 221, 229 (Bankr. D.P.R.

1996).

2. Eliminate issues from trial. See Chicago Dist. Council of Carpenters Pension Fund v. P.M.Q.T., Inc.,

169 F.R.D. 336, 341 (N.D. Ill. 1996); Howell v. Maytag, 168 F.R.D. 502, 504 (M.D. Pa. 1996); ARP v.

Amezaga (In re Amezaga), 195 B.R. 221, 229 (Bankr. D.P.R. 1996).

3. Form the basis for a motion for summary judgment or summary adjudication. See Huon Le v. Krepps,

476 Bankr. 646 (S.D. Ga. 2012) (debtor admitted that he acted with intent to hinder, delay, or defraud his

creditors in quitclaiming property; summary judgment avoiding fraudulent transfer granted ); Bronson

v. Adams, 59 Fed Rules Serv. 3d 196 (Bankr. N.D. Iowa 2004) (summary judgment granted where

bankruptcy trustee’s admission resolved case’s only factual issue).

4. Set up possible sanctions for false denials. See Section I.F. below.

5. Authenticate evidence and establish its admissibility.

C. Admissions a party gives to requests for admission conclusively establish those matters for trial. FRCP

36(b); Banos v. City of Chicago, 398 F.3d 889 (7th Cir. 2005) (admissions are treated like sworn testimony

and once made, should not be revisited).

D. An admission is allowed for the pending action only. See FRCP 36(b). Requests for admission may relate to

any matter that is relevant to the action’s subject matter and is not privileged. See FRCP 26(b)(1), 36(a)(1).

Requests for admission may relate to claims or defenses of the requesting party or of any other party, such

as the:

1. Existence, description, nature, custody, condition, location or admissibility of documents or other

tangible things. FRCP 26(b)(1).

2. Identity and location of persons with knowledge of any discoverable matter. FRCP 26(b)(1).

E. A request for admission may not ask a party to admit to interpretations or summaries of documents.

Similarly, a request for admission may not ask a party to admit the accuracy of quoted text from a particular

document. Henry v. Champlain Enters., 212 F.R.D. 73 (N.D.N.Y. 2003).

F. Requests are deemed admitted if the responding party does not answer on time. See FRCP 36(a)(3); Carney

v. Internal Revenue Service, 258 F.3d 415 (5th Cir. 2001) (summary judgment based on deemed admissions

was properly granted when party failed to respond timely to requests, failed to support claim that parties

had stipulated to extend time to respond, and failed to move to withdraw or amend admissions); Huon Le v.

Krepps, 476 Bankr. 646 (S.D. Ga. 2012) (answers to interrogatories did not relieve party of duty to answer

requests for admissions, facts conclusively established). However, the admissions are binding only on the

party who fails to timely respond, not on coparties. See Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir.),

reh’g en banc denied, 111 F.3d 894 (5th Cir. 1997); National Independent Truckers Ins. Co. v. Gadway, 860

F. Supp.2d 946 (D. Neb. 2012) (deemed factual admissions by insurer’s employee could not be dispositive of

insurer’s claim for rescission of policy). Moreover, the admissions are still subject to admissibility objections

at trial. See Palmetto State Medical Ctr. v. Operation Lifeline, 117 F.3d 142, 146 (4th Cir. 1997) (district

court erred in allowing admissions into evidence when not probative of claim); Walsh v. McCain Foods, 81

F.3d 722, 726-27 (7th Cir. 1996) (affirming exclusion of admissions as hearsay).

G. If a responding party denies a request to admit and the requesting party establishes that fact at trial, the

responding party may have to pay the costs and attorney’s fees the requesting party incurred to prove

that fact. FRCP 37(c)(2); Marchand v. Mercy Medical Ctr., 22 F.3d 933, 937 (9th Cir. 1994); Securities

& Exchange Commission v. Happ, 295 F. Supp. 2d 189 (D. Mass. 2003) (monetary sanctions imposed for

plaintiff’s unwarranted refusal to stipulate to authenticity of telephone billing records and refusal to admit

that no call was made at time in question). However, an adverse verdict does not automatically justify an

award of fees if the party’s denial of a request has reasonable grounds. See U.S. v. Pecore, 664 F.3d 1125

(7th Cir. 2011) (expense award denied where there was reasonable confusion surrounding factual matters

underlying requests such that party’s position on requests was reasonably justified); McMahan v. Adept

Process Services, Inc., 81 Fed. Rules Serv. 3d 184 (E.D. Va. 2011) (expense award denied where party’s