Objections to Requests for Admission

Simply put, many attorneys do not understand the proper scope of requests for admission. I previously wrote about inappropriate requests. This post concerns inappropriate objections.

NRCP 36(a) provides a party responding to a request for admission five options: 1) admit; 2) deny; 3) admit in part; 4) deny in part; or 5) explain why it is unable to answer. It is possible to object to all or part of a request as well, but courts do not like parties who play word games to avoid responding.

A party may not avoid responding based on technicalities. For example, a party who is unable to agree with the exact wording of the request for admission should agree to an alternate wording or stipulation. When the purpose and significance of a request are reasonably clear, courts do not permit denials based on an overly-technical reading of the request.

United States ex rel. Englund v. Los Angeles, 235 F.R.D. 675, 684 (E.D. Cal. 2006) (citations omitted).

I most recently litigated objections to requests for admission in A-11-646018-C. I sent five requests for admission, received a slew of objections and filed a motion to compel.

Request for Admission 1: Admit BIGO000534-BIGO000535 is a binding contract between Falken Tire Corporation and Big O Tires, LLC.

Response: This request calls for either crucial facts central to the lawsuit or legal concessions. See Morgan v. Demille, 106 Nev. 671, 799 P.2d 561 (1990). Calls for a legal conclusion. This document speaks for itself. On its face, this document was prepared on behalf of TBC Corporation.

Many Nevada lawyers object and rely upon Morgan v. Demille, but they misunderstand the actual holding. The plaintiff in Morgan served a request for admission upon a defendant. The request asked the defendant “to admit that her negligence was the sole cause of the collision and that respondent was liable for any damages proximately caused to appellants as a result of the collision.” Morgan, 106 Nev. at 675-76, 799 P.2d at 564. The defendant refused. The Supreme Court determined this refusal was proper.

[T]he procedure for obtaining admissions of fact is to be used to obtain admission of facts as to which there is no real dispute and which the adverse party can admit cleanly, without qualifications. Typical of such facts are delivery, ownership of an automobile, master and servant relationship, and other facts of that nature which are not in dispute and of which an admission will greatly facilitate the proof at trial. It is not intended to be used to cover the entire case and every item of evidence.

Id. at 675, 799 P.2d at 564 (citations omitted). This contrasted with the scope of the plaintiff’s request to admit both negligence and liability.

This request is too broad and involves both factual issues as well as legal issues. The purpose of procedural statutes such as NRCP 36 is to obtain admission of facts which are in no real dispute and which the adverse party can admit cleanly, without qualifications. Here, [plaintiff’s] request for admission called for either crucial facts central to the lawsuit or legal concessions.

Id. at 676, 799 P.2d at 564 (internal citation omitted).

Applied to my case, the court ruled Morgan did not apply to request for admission one.

The other objections to request for admission one were also overruled. The opposing party asserted the request was inappropriate because it “[c]alls for a legal conclusion.” NRCP 36(a) explicitly permits a request for admission to require some application of facts to law. “A party may serve upon any other party a written request for the admission … of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact….” NRCP 36(a).

This is also true in federal courts.

While requests that ask for pure conclusions of law are improper, and often incorrect as they admit no exceptions (e.g., admit that the Fourth Amendment prohibits all seizures without a warrant), as are requests that ask the responder to admit to a legal conclusion which would end the case, ( e.g., in a tort suit— admit that you drove negligently through the intersection causing the accident), a request that requires application of law to facts is not improper. Garcia v. Clark, 2012 U.S. Dist. LEXIS 51771, 2012 WL 1232315 (E.D. Cal. 2012) citing Safeco Ins. Co. Of Am. v. Rawston, 181 F.R.D. 441, 445 (C.D. Cal. 1998). See also Fed. R. Civ. P. 33(a)(2) when referencing contention interrogatories (the nearly identical sibling of the request for admission): “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact, or the application of law to fact…”

Cal. Sportfishing Prot. Alliance v. Callaway, 2012 U.S. Dist. LEXIS 75703, 2012 WL 1969206 (E.D. Cal. 2012); Thomas v. Cate, 715 F. Supp. 2d 1012, 1029-1030 (E.D. Cal. 2010) (collecting cases holding this objection is improper in the context of an interrogatory).

The “[t]his document speaks for itself” objection was also summarily rejected. House v. Giant of Maryland, LLC, 232 F.R.D. 257 (E.D. Va. 2005) specifically and emphatically rejected this type of evasive objection as “folklore.” The court observed the “folklore”

holds that requests for admission need not be answered if the subject matter of the request “is within plaintiff’s own knowledge,” “invades the province of the jury,” “addresses a subject for expert testimony,” or “presents a genuine issue for trial.” A favorite excuse for not answering requests for admission in a contract case is that “the document speaks for itself.” It is common practice to deflect requests to admit the genuineness of documents with answers such as “my client is not the custodian of this record.” The folklore further holds that a litigant will always have the chance to amend his answer before sanctions can be imposed.

The party to whom requests for admission are propounded acts at his own peril when answering or objecting. Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted or in a post-trial award of monetary sanctions without prior opportunity to correct the deficiency. Therefore, the only safe course of action is to adhere to the plain language of Rule 36(a)….

Id. at 262; Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 531 (S.D. W. Va. 2007).

The final objection was that “[o]n its face, this document was prepared on behalf of TBC Corporation.” There was no explanation as to how this assertion prevented the responding party from admitting or denying this request for admission. It was also overruled.

Request for Admission 2: Admit the Falken Tire Product that Plaintiffs in this case allege was defective was not sold as a second, as defined in BIGO000534-BIGO000535.

Response: Upon reasonable inquiry, the information known or readily available to this answering defendant is insufficient to enable this answering defendant to either admit or deny this Request. It therefore DENIES this Request. Discovery is ongoing. This answering defendant may supplement or amend this response upon receipt of additional information.

I often see objections phrased this way to rely upon NRCP 36(a).

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

A responding party’s declaration pursuant to NRCP 36(a) alone is inadequate.

The responding party’s simple statement that he or she has made a “reasonable” inquiry and is unable to admit or deny the request because insufficient information is available may not suffice as an answer to the request for admission. Moreover, the fact that the party has not done so may be asserted as a basis for challenging the response. Alternatively, costs may be awarded against a party for failure to inform himself or herself before answering, as provided by Rule 37(c).

Englund, 235 F.R.D. at 685 (citations omitted). If a party needs to rely upon NRCP 36(a) be prepared to explain what reasonable inquiry was made.

The final objection, that “[d]iscovery is ongoing,” was illogical. The mere fact that the discovery period has not closed does not exempt a party from NRCP 36. As requests for admission can only be served during the discovery period, this objection is would negate NRCP 36 in its entirety. I also received an objection to another request that it “assumes facts not in evidence.” This objection was also overruled because, by definition, no facts had yet been entered into evidence because the case had not yet been tried. If this objection were valid then no discovery could ever occur.

It is possible to assert well reasoned objections to a request for admission. Be wary, however, of asserting objections that are not supported.