Requests for Admissions

• Author: Ashley S. Lipson
• Pages: 197-242

No evidence is as conclusive

as a simple admission.

Chapter 5

Requests for Admissions

Table of Contents

§5.10 Basic Training and Strategy

§5.20 Drafting Your Requests and Timing Your Attack

§5.21 Drafting—Rules and Suggestions

§5.30 Admissions to Target and Capture

§5.31 Facts Relevant to the Dispute

§5.32 Opinions

§5.33 Application of Law to Facts

§5.34 Foundations for Document Admissibility

§5.40 The Rules That You Need

§5.41 Federal Rules Pertaining to Requests and Refusals

§5.50 Responding to the Requests

§5.51 Denial

§5.52 Admission

§5.53 Partial Admission

§5.54 Qualified Admission

§5.55 Statement of Lack of Information

§5.56 Objection to Requests

§5.57 Motion for Protective Order

§5.60 Enforcing the Requests

§5.70 The Forms That You Need

Form 5.1 Requests for Admissions

Form 5.2 Response to Requests for Admissions

Form 5.3 Initial Request Letter (Requiring Respondent to Research

Document)

Form 5.4 Initial Request Letter (Requiring Respondent to Conduct

Investigation)

Form 5.5 Motion in Limine to Preclude the Introduction of Evidence

Contradicting Respondent’s Admissions

Form 5.6 Motion to Permit Withdrawal of Deemed Admission

Form 5.6(a) Motion to Extend Time to Respond to Requests for

Admissions

Form 5.7 Motion to Amend Response to Request for Admissions

§5.10 Guerrilla Discovery 5-2

1 In some circumstances, the number of requests may be unlimited. Presently, Rule 36 of the Federal Rules of Civil Procedure,

pertaining to Requests For Admissions, places no limits on the number that a party might submit. However, the 2000

Amendments to Rule 26(b) authorize the district courts to place limits.

Moses v. Jordan, 310 Ga.App. 637, 714 S.E.2d 262 (Ga.App., 2011) held it to be an abuse of discretion for the trial court to

grant a blanket protective order based upon the number of requests. Discovery should not be prohibited where that effect is to

frustrate the purpose of discovery and prevent legitimate discovery.

2 In a few states, most notably California, if there is no response to the Request, the Requesting Party must meet, confer, and

file a motion to confirm the admissions. California Code of Civil Procedure §2033.280 states: “If a party to whom requests

for admissions are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for

admission are directed waives any objection to the requests, including one based on privilege or on the protection for work

product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on

its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in

substantial compliance with Sections 2033.210, 2033.220 and 2033.230. (2) The party’s failure to serve a timely response was

the result of mistake, inadvertence, or excusable neglect. (b) The requesting party may move for an order that the genuine-

ness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary

sanction under Chapter 7 (commencing with 2023.010). (c) The court shall make this order, unless it finds that the party to

whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to

the requests for admission that is in substantial compliance with 2033.100 on the party. It is mandatory that the court impose

a monetary sanction under Chapter 7 (commencing with 2023.010) on the party or attorney, or both, whose failure to serve a

timely response to requests for admission necessitated this motion.”

3 See infra, §5.41.

4 See Rule 26(d) of the Federal Rules of Civil Procedure.

5 See, however, Footnote 2, supra.

6 See Advisory Committee Notes on the 1970 Amendments to Rule 36 of the Federal Rules of Civil Procedure. See also 71 Yale

L.J. 371 (1962).

Walker v. Employers Insurance of Wausau, 846 N.E.2d 1098 (Ind. Ct. App. 2006). The purpose of an admission is not to dis-

cover a fact, but to establish a fact conclusively. A request for admission is a “close-ended” inquiry, i.e., it requires, either by

admission or denial, an answer that is unambiguous, unequivocal, and without the evasion often characteristic of answers to

depositions and interrogatories.

McFadden v. Ballard, Spahr, Andrews & Ingersoll, LLP, 243 F.R.D. 1 (D.D.C. 2007). Requests for admissions are not a discovery

device; they are designed to narrow the issues for trial. The court could order a party that denied a request for admission to pay the

costs of an opponent who was otherwise required to prove the genuineness of a document or the truth of a matter requested.

§5.10 Basic Training and Strategy

The Request For Admissions provides a very

powerful discovery weapon that can be used to force the

enemy to admit the truth of relevant facts and opinions.

When considering burdens of proof, there is no more

definitive resolution of an issue than an admission by

the opposition. Even the truth itself can be forced to

take a back seat once an admission has taken effect. No

effective discovery plan should ignore this device.

Considering using the requests first and using

them fast. Requests For Admissions can effectively

form a beach head for a more comprehensive discovery

attack. There are several reasons for this. First, they are

free. By free, I mean that there are fewer limitations and

restrictions on this weapon than on the others.1 Rules

vary from state to state and, of course, local rules and

standing orders may come into play. But generally, with

this particular weapon, there is less work, less expense

and fewer restrictions.

Secondly, they are self-executing, federally and

in most states;2 like a delayed- fuse hand grenade,

they do their damage automatically after a defined

period has expired. Follow-up may be unnecessary.

Next, with the federal rules as a model,3 Requests

for Admissions can be served without leave of court

at any time after the Initial Conference.4 Also, there

are no limits upon the number of sets or the number

of individual requests that might be served. And, the

sanctions for failing to respond are self-executing.5

Originally, the Requests For Admissions pro-

cess was not technically considered by the courts as

a discovery device. Rather, it was initially designed

as a pleading for narrowing and eliminating issues.6

Therefore, subject to local rules and standing orders,

Requests For Admissions may escape traditional dis-

covery limits and deadlines. Overall, this means that

the device can be used to eliminate a lot of bothersome

preliminary facts and matters without “using up” or

5-3 requests For aDmissions §5.20

7 Unfortunately, the word has spread. This once neglected and often-ignored tool of “issue resolution” is fast becoming a widely

recognized discovery weapon of major destruction. Now, many states are modifying their civil procedure rules by imposing dis-

covery-like limits on their use.

8 Note, however, that like other discovery devices, Requests for Admissions may ultimately be regulated by: (a) the applicable state

code of civil procedure, (b) local court rules, (c) general standing orders, and (c) pretrial orders. California Code of Civil Procedure

§2033, for example, requires that additional steps be taken to secure admissions for which there has been no response. (See gen-

erally, §1.61[2].)

City of Ashland v. Ashland Salvage, Inc., 711 N.W.2d 861, 271 Neb. 362 (2006). A party’s failure to make a timely and appropriate

response to a request for admission constitutes an admission of the subject matter of the request, which matter is conclusively

established unless, on motion, the court permits a withdrawal of the admission. However, a party that seeks to claim another par-

ty’s admission as a result of that party’s failure to properly respond, must prove service of the request for admission and the served

party’s failure to answer or object to the request, and must also offer the request for admission as evidence.

Central Nassau Diagnostic Imaging, P.C. v. GEICO, 28 Misc.3d 34, 905 N.Y.S.2d 431 (2010). An admission made pursuant to a

notice to admit is not merely evidence of the fact admitted, but rather conclusively resolves that fact. The plaintiff health care pro-

vider could use admissions to establish its entitlement to recover overdue assigned first-party no-fault benefits; requests for admis-

sions were appropriate and the insurer, by failing to respond to the notice was deemed to have admitted the facts on which the

provider sought admissions, and because insurer admitted that the two bills attached to the notice were “true and accurate,” copies

of the bills received by the insurer established its entitlement to recovery.

9 You are, of course, more likely to encounter a “relevance” objection due to a lack of materiality, particularly if you belabor the point.

But you should be able to overcome the objection with: “Your Honor, I’m aware that my opponent has admitted and conceded the

matter, but the testimony of my proposed witness is designed to avoid a gap in the presentation of my case, one which is certain to

cause confusion. I promise to present the matter for purposes of continuity; it is certainly relevant to these proceedings.” See Rule

401 of the Federal Rules of Evidence.

even touching upon your classic discovery weapons.7

What many fail to appreciate is that it can also be used

to attack the material issues in the case, in much the

same manner as Interrogatories and Depositions.

An important reason for employing them early

is their self-enforcement characteristic. If a party fails

to respond (and attorneys often do), the requested facts

are automatically admitted. No motions, no additional

pleadings and no telephone calls to the opposition are

needed. Depending upon the applicable local court

rules, you may have what you want with a minimal

amount of effort and expense.8 So unlike depositions

and examinations, the “cost” outlay involves paper

and postage only. Considering the dollars required for

some of the other discovery devices, the Requests for

Admissions are truly “free.”

If a party responds with an improper denial,

you may be able to force that party to reimburse your

client for the costs and attorney fees incurred to prove

the fact that was denied. This permits you to take an

early aggressive stance in the face of your enemy:

“Either admit my facts or pay me to prove them!”

Speed is important, if Requests for Admissions

are to be effective. The goal is to use your requests

quickly to eliminate some discovery issues before

“formal” discovery actually begins. Even though the

requests are technically self-executing, follow-up

motions may be required where the responding parties

provide objections or ambiguous replies. Also, under

some circumstances, you may want to test by way

of motion the sufficiency of responses or a failure to

respond, just to put the issues to bed.

In addition to the early use of Requests For

Admissions, which is recommended, the requests can

be employed again toward the end of discovery, after

the opposition has had time to adequately investigate

his or her case and conduct discovery. That is where

the “issue resolution” aspect, for which the device was

intended, comes into play.

Because of its ability to remove and resolve

issues, the Request For Admissions becomes an excel-

lent device for laying the foundations for motion for

summary adjudication.

§5.20 Drafting Your Requests and

Timing Your Attack

If you represent the plaintiff, the very first thing

that you will want to do is construct a list of the ele-

ments that you are going to need to establish your

prima facie case, along with the facts required to back

them up. You may be surprised as you first confront

your enemy with requests to learn that many seeming-

ly contentious facts are actually uncontested.

Knowing that the burden of proof falls upon

your shoulders, the more facts that you can eliminate

during a simple preliminary skirmish, the better. And

remember, just because you establish the truth of a

given fact does not mean that you are automatically

precluded at trial from presenting that fact by way

of testimony.9 There is, however, an opposing strat-