Requests for Admissions

AuthorAshley S. Lipson
No evidence is as conclusive
as a simple admission.
Chapter 5
Requests for Admissions
§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
§5.35 Foundations for Other Types of Evidence
§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
5-167 requests FOr admissiOns §5.10
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 dis-
covery 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 genuineness 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 discover 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.
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 discovery-like limits on
their use.
§5.10 Basic Training and Strategy
The Request For Admissions provides a very power-
ful 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 opposi-
tion. Even the truth itself can be forced to take a back seat
once an admission has taken effect. No effective discov-
ery 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 individ-
ual requests that might be served. And, the sanctions for
failing to respond are self-executing.5
Originally, the Requests For Admissions process 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 discovery 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 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 plead-
ings and no telephone calls to the opposition are needed.
§5.20 Guerrilla discOvery 5-168
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 generally, §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 party’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 provider could use
admissions to establish its entitlement to recover overdue assigned first-party no-fault benefits; requests for admissions 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.
10 Who can forget that riveting scene from the 1982 Sidney Lumet film “The Verdict,” wherein a defending doctor, who falsely claimed to have
examined a patient’s chart prior to surgery, was exposed by a nurse who had previously been instructed by that doctor to lie. The shaking,
sobbing nurse testified that she was threatened “If you say anything, you’ll never practice again.” Can’t you still hear her shrieking cries
from the witness stand? “Who were these people! I wanted to be a nurse!”
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. Consid-
ering 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 Admis-
sions, 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 excellent 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 elements
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 seemingly 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 strategy, which might best be
referred to as the “Verdict Effect.”10 In particular, where
egregious conduct is denied by a defendant, who is later
proven culpable in open court as opposed to a simple
paper admission, the jury may very well increase the
defendant’s punishment significantly. This expose-the-
liar strategy can be of particular value in cases involving
punitive damages. But keep in mind that this strategy
would serve little purpose in cases involving liquidat-
ed damages. And in other cases, trading a simple slam
dunk (i.e. admission) for a show boat “spin 360 and
dunk” will always entail some risk. In the last analysis,
the practitioner should weigh the quantity of supporting
evidence and the value of drama against the certainty of
the admission.

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