Requests for Admissions

• Author: Ashley S. Lipson
• Pages: 168-207

5-166

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.