Federal Discovery — 10 Tips for Propounding and Answering Requests for Admission
Requests for admission (RFAs) are an extremely valuable, but significantly underused, discovery and litigation tool. They are an effective tool to help you streamline your case or defense. William Audet and Kimberly Fanady offer you these tips from their book, Handing Federal Discovery, for propounding and responding to RFAs.
Propounding RFAs
Combine interrogatories, requests to produce, and requests for admission to pin down your opponent:
- Request for Admission #1: Admit that you manufactured the widget at issue.
- Interrogatory #1: If your response to Request for Admission #1 was anything but an unqualified admission, state all facts on which you based your response including, without limitation, the name, address and telephone number of all entities who manufactured the widget.
- Request to Produce #1: If your response to Request for Admission #1 was anything but an unqualified admission, produce all documents supporting your response.
Do not wait until the end of the case to propound requests for admission — by then they may not be as useful to you. Obtaining admissions about foundational elements for admitting documents into evidence at trial is one of the most effective uses of requests for admission. Unlike other discovery devices, requests for admission are best used to establish matters you already know or suspect to be true rather than to discover new information.
Responding to RFAs
As with all discovery, you are obligated to make a reasonable inquiry and diligent search for the requested information. Send a copy of the requests to your client and schedule a meeting to plan responses. Explain to your client the consequences of denial, admission and motions to compel.
It is poor practice to quibble about admissions relating to document authenticity and background facts (dates, times, ages and ownership) unless they are truly in dispute. Failing to admit such facts wastes trial time and may invoke FRCP 37(c)(2) sanctions.
Be cautious about simply denying a request based on your reasonable belief you might prevail on the issue. If the requesting party proves the issue at trial, your client may have to pay costs and attorney’s fees. FRCP 37(c)(2). A better approach is to deny and explain the basis of your belief. Then, if your opponent does not move to compel and establishes the truth of the request at trial, you have an equitable argument that your opponent waived any challenge to your response.
Draft responses as you would like a jury or judge to see them. Avoid being strident, argumentative or picayune, even if you would be justified in doing so.
Consider using the word “agree” in place of “admit” in your responses (e.g., “Plaintiff agrees that her damages do not exceed $10,000”). This sounds more positive and less “guilty” than admitting something.
Avoid resting objections solely on the wording or form of the request. Instead, try to phrase your response affirmatively using words that put your client’s position in the best light.
William M. Audet is the founder of Audet & Partners, LLP, in San Francisco. His practice is focused on complex litigation, including class and non-class action claims involving mass torts, product liability, antitrust and consumer class actions. Mr. Audet has been recognized by Super Lawyers as one of the Top 100 Attorneys in Northern California.
Kimberly A. Fanady is a sole practitioner in San Francisco. Her commercial litigation practice includes representing major financial institutions and other corporate clients in federal and state trial and appellate courts in the areas of contract and commercial disputes, lender liability, creditors’ remedies, consumer class actions involving unfair business practices, consumer credit reporting, automobile sales and financing, securities fraud, employment discrimination, wrongful termination, construction law, and workout/settlement negotiation and documentation.
