Requests for Admissions are sort of the red-headed stepchild of the discovery process. Interrogatories and Requests for Production get all the attention in law school and CLEs, while poor Requests for Admissions (RFAs) sit in the corner, never asked to dance. But RFAs can provide a good avenue in which to firmly establish undisputed facts at trial. The rules for RFAs vary from state to state so we’ll look at Federal Rules of Civil Procedure Rule 36 as a model example:
(a) Scope and Procedure.
(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.
(2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.
(3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.
(6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses.
(b) Effect of an Admission; Withdrawing or Amending It. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
So what we’re aiming for is a way to skip over any disputes involving facts that are: known to all parties, relevant, and uncontested. They can also be used to authenticate a document before trial. Effective use of RFAs can help narrow issues in a case and avoid any arguing over proof at trial.
How to Write Requests for Admissions
The reason RFAs are on my mind is because I read a post over at Evan Schaffer’s Trial Practice Tips Blog where he highlighted a post by attorney Gregory S. Forman who had recently written about his take on RFAs:
…the ideal request to admit is: 1) not trivial; 2) not already acknowledged; and 3) narrow enough that an admission is useful but a denial is subject to impeachment. A request to admit that one in an unfit parent might better be reframed as “admit or deny that your untreated mental health disorder placed the minor child in danger on [date].”
Which is sound advice. But even with that being said it can be tough to find a place to start if you are new to drafting RFAs. A solid piece of advice I received from an experienced lawyer was that a good place to start when drafting RFAs is to look at the Pattern Jury Instructions for your claim. For example, here in Alabama, the Pattern Jury Instructions for Defamation are as follows (in abbreviated fashion):
- The plaintiff has the burden of proving that the statement that is complained of was false regarding the plaintiff.
- The plaintiff has the burden of proving to your reasonable satisfaction that the statement that is complained of was defamatory.
- You can find for the plaintiff only if you are reasonably satisfied from the evidence that the defamatory statement that is complained of was of and concerning the plaintiff.
- The plaintiff has the burden of proving to your reasonable satisfaction that the defendant published the statement that is complained of.
- The plaintiff has the burden of proving to your reasonable satisfaction from the evidence that the defendant engaged in some degree of fault in publishing the defamatory statement.
So if I was going to draft RFAs for the plaintiff in a defamation case I might write:
- Admit that [name of defendant] knew that [complained of statement] was false when it was declared.
- Admit that [name of defendant]’s [complained of statement] lowered [the plaintiff] in the estimation of the community or to deter third persons from associating with the plaintiff.
- Admit that [name of defendant]’s [complained of statement] was about and/or concerning [the plaintiff].
- Admit that [name of defendant]’s [complained of statement] was made in the presence of [named third parties].
- Admit that [name of defendant] knowingly and negligently made the [complained of statement] even though [name of defendant] knew it to be false.
Now, the defendant isn’t going to just admit to all of these, they’ll likely deny most of them. But they might admit to what named parties were present. Or that the defendant did indeed said/issued the complained of statement. Which means you can tick off an essential element to your claim and not have to worry about proving it at trial.
Timing/Limits on RFA
It’s also worth noting that some jurisdiction place limits on the amount of RFAs you are able to serve on another party. If you are in such a jurisdiction, strategically, it’s likely your best bet not to blow all your RFAs on the initial round of discovery. Instead use some of your RFAs to probe for any weaknesses or definitively nail down a necessary fact. Then as discovery moves on you can use the remaining RFAs in a variety of ways that are to your tactical advantage. Use them leading up to a motion for summary judgement, lock in testimony take at deposition, or drop them on the other close to discovery cut-off to pressure them to answer quickly or be unable to answer (thus deeming the RFA admitted).
All in all, RFAs are a useful discovery tool that is worth your time and attention. Take the time to look for discovery guides in your jurisdiction that provide instructions and advice on how to maximize your use of RFAs.
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