Don’t Deny It: Everyone’s Requests for Admission Could Use Some Help
Requests for Admission (RFAs) can be valuable tools in pre-trial litigation; that is if they are properly drafted and subsequently enforced by the court. When drafting RFAs, prepare clear, concise, and simple requests. RFAs are strongest when used to stipulate factual assertions, applications of law to facts, or to authenticate relevant documents. RFAs can be issued at any time during pre-trial litigation, so be mindful of your overall litigation strategy when deciding when to issue RFAs.
A clear admission or denial provides the requesting party with the greatest leverage. As you should do at the outset of any litigation, take a look at what you (or your opponent) must prove at trial, whether that’s the applicable common law, statute, and/or jury instructions. Once you create a checklist of allegations that must be proved or disproved, fashion RFAs that will allow you to narrow your focus to the relevant issue(s). In addition to solidifying the real issues in dispute, RFAs can be used to confirm facts, whether testimony or written discovery responses, that are beneficial to your cause of action or defense. This allows the requesting attorney to log which facts are in dispute and which are not, simplifying his or her presentment of the case. If the requesting party seeks confirmation of a fact upon which there is testimony or documentation and the party denies the request, the requesting attorney now has an inconsistency to wield against it. If the party responds claiming insufficient information, the requesting attorney can point directly to the witness or document his request originated from.
So, now you have responses. How do you use them? If the responding party does not timely respond to the RFA, the statement is deemed admitted under Fed. R. Civ. P. 36. An attorney may file a motion and seek the Court’s determination that the unanswered requests be admitted. This tactic will likely allow the responding party to move the court for additional time to respond or to submit a motion in opposition. Consideration of such a motion is particularly risky for the requesting attorney because if the court rules against him, deeming the requests unadmitted, he has lost significant ammunition for use at trial. Alternatively, if the RFAs are substantive enough, the requesting attorney could move for summary judgment, or wait until trial and seek a directed verdict. The requesting attorney would then argue that the admissions/denials/or unanswered RFAs form the factual and legal predicate for a favorable ruling. This forces the responding party to not only submit its motion in opposition, but also defend and explain why it did not provide a timely answer to the RFAs on time and why the court should deem the RFAs as unadmitted, possibly motioning for an extension to answer. Filing a dispositive motion also demonstrates that the moving attorney relied on the RFAs as factual assertions and, therefore, did not conduct further discovery.
If you are on the receiving end of RFAs, make sure you answer them promptly. Answers should be limited to an admission, denial, or a specific response as to why you cannot admit or deny (such as lack of knowledge). Any objection should be well-crafted and provide specific grounds. It is important to look at the case law in your jurisdiction because courts typically disfavor boilerplate objections. In answering a RFA with a lack of knowledge response, the party should be prepared to testify at deposition why such answer was provided (either “I discussed it with my attorney”, which cuts off that line of questioning due to the existence of privilege, or specifically state the circumstances that demonstrate a lack of knowledge). Courts are unlikely to tolerate a lack of knowledge response without some showing that an effort was made to gather the information necessary for a response.
MRJ clerks Andrew Lehmkuhl, Melissa Springer, and Matthew Weigel contributed to this post.