By Eliot T. Tracz
Written discovery can elicit different reactions from different people. Some may find it tedious, others interesting. Regardless, it is an inevitable part of the litigation process. Often, the process for written discovery—interrogatories, requests for productions, and requests for admissions (RFAs)—follows a predictable pattern: All of the written discovery is bundled together and served on the opposing party; the responses contain some documentation, routine objections, and denials of some facts that will later prove true. While this process is commonly followed, and is mandatory in cases assigned to Expedited Litigation Track, there are alternatives that allow a more strategic use of discovery tools.
Nearly every young litigator knows that RFAs are a tool used to narrow the number of disputed issues in a case. While that can certainly be done when bundled with other written discovery, the inherent versatility of RFAs really comes through when they are unbundled and allowed to stand on their own. To that end, I suggest that RFAs work best when reserved until after depositions. There are three reasons for this approach: (1) the way the rules of civil procedure—state and federal—structure RFAs; (2) the ability to fill holes from depositions; and (3) the opportunity to set your case up for summary judgment.
Federal Rule of Civil Procedure 36 and Minnesota Rule of Civil Procedure 36 govern RFAs in federal and state court respectively. In some ways they are similar: Neither limits the number of RFAs that may be propounded during the course of discovery; both require an answer within 30 days or the matter of which an admission is requested is deemed admitted; and both limit the use of the admissions solely to the matter at issue.1 Another benefit is that, in both state and federal court, the party upon whom the RFAs have been propounded may only assert lack of knowledge if that party asserts that a reasonable inquiry has been made and the information available or readily obtainable by the party is insufficient to enable the party to admit or deny.
It is here that service of RFAs after depositions really yields fruit. Where an RFA served early in discovery may result in a denial or a statement that the party upon whom the request was served lacks information, RFAs tailored to deposition testimony can set up a strong motion for summary judgment. Once you’ve built your story, and put the story to the opposing party one piece at a time, you can nail down specific facts that help your case one at a time—and under oath!
Imagine, for example, that you are deposing the CEO for a company alleged to have violated a commercial lease which included a personal guaranty. Naturally, your questions would seek to elicit testimony that there was a lease, that the lease was breached, that there was a personal guaranty, and that the CEO understood what the personal guaranty was.
Once the deposition is completed, it is time to tailor those RFAs to the substance of the deposition. The specific material facts that you have managed to nail down are ripe for admissions because the answering party must admit to items that are true, or face sanctions if they deny claims that are proved true.2 Every question of material fact that is admitted is conclusively established unless the court permits withdrawal or amendment, something that is less likely to happen when the admission is supported by deposition testimony.
From there, the path to summary judgment is clear. The standard for summary judgment is the same both in Minnesota and in federal court: There are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law.3 It is easier to show the court that there are no genuine issues of material fact when you can argue that the opposing party agrees with your position and then cite the applicable admission. But that’s not all; RFAs can also be used to elicit admissions as to opinions regarding the application of law to fact.4 Well-crafted RFAs can also place you in a strong position to argue that the opposing party even agrees with your application of the law.
The second reason to reserve RFAs until after depositions are over is to address possible deficiencies in discovery. Using RFAs to addresses these mistakes is particularly effective for two reasons: first, by asking a question in the form of a request for admission, you not only get to ask the question that you might have missed earlier—you also get to frame the answer through the wording of the request. If you know the answer you want, the language of the RFA can prompt the admission that you are looking for. Second, in the event that you have discovered a hole in your discovery, an RFA could be coupled with interrogatories so that if the RFA is denied, the interrogatories may help direct you to the information that you need.
Because a party may issue an unlimited number of RFAs, a submission of RFAs may serve multiple purposes without limiting the opportunity of the party propounding the RFAs to pursue answers. Waiting until depositions are finished to serve RFAs allows them to be used to eliminate issues, follow up on or addresses issues with discovery, and ultimately, to tee up a summary judgment motion that is airtight. Since RFAs can be wielded broadly (to capture information) or surgically (to eliminate specific issues and move a case towards resolution), perhaps when the opportunity arises you will consider unbundling them, and using them to their full potential.
ELIOT T. TRACZ is a litigation associate at Dunlap & Seeger, P.A., former judicial clerk, and adjunct professor at Mitchell Hamline School of Law.
Notes
1 Fed. R. Civ. P. 36; Minn. R. Civ. P. 36.01.
2 Minn. R. Civ. P. 37.03(b); Fed. R. Civ. P. 37(c)(2).
3 Minn. R. Civ. P. 56; Fed. R. Civ. P.56.
4 Minn. R. Civ. P. 36.01; Fed. R. Civ. P. 36(a)(1)(A).