Beruflich Dokumente
Kultur Dokumente
.
.
[ 5.11
Scope of Chapter
............................
11
In General ................................. 3 A. [5.3] Nature and Purpose of Requests for Admissions .............................. 3 1. [ 5.41 In General ............................ 3 2 . [ 5.51 Narrowing Issues for Trial ............... 6 3. [ 5.61 Establishing Undisputed Facts for Purposes of Summary Judgment ........... 6 4 . [ 5.71 Expediting Admission of Trial Exhibits .... 10 B . [ 5.81 . Scope of Requests for Admissions ........... 11 C. [5.9] Effect of Admissions and Denials ........... 14 1. [5.10] Admissions .......................... 14 2 . [ 5.111 Denials ............................. 17
[ 5.21
[ 5.121 Serving Requests for Admissions .............. A. [ 5.131 When Requests May Be Served ............. B . [ 5.141 On Whom Requests May Be Served ......... C. [ 5.151 Number of Requests Permitted ..............
I11
.......................
17 17 19 20 21 23 23 25 25 25 27
IV
A. [ 5.181 B . [$5.19] Format of Response ...................... 1. [ 5.201 In General ........................... 2 . [5.21] Objections ........................... 3. [ 5.221 Denials ............................. 4 . [ 5.231 Statements Alleging Inability to Admit orDeny ............................. 30
.....
31
V.
.........
37
VI.
.................................... 43
Appendices ............................................. 44 5A Sample Requests for Admissions .................... 44 5B Sample Response to Requests for Admissions .......... 49 5C Sample Interrogatories ............................. 55
Unless otherwise indicated, all references in this chapter to the Wisconsin Statutes are to the 2003-04 Wisconsin Statutes, as affected by acts through 2005 Wisconsin Act 60. Textual references to the Wisconsin Statutes are hereinafter indicated as "chapter xxx" or "section xxx.xx," without the designation "of the Wisconsin Statutes." . -
See, e.g., Bank o f Two Rivers v. Zimmer, 112 Wis. 2d 624, 630-31, 334 N.W.2d 230 (1983). In Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 7 29,252 Wis. 2d 426,643 N.W.2d 98, the court noted that section 804.1l(2)
Vh. 4 PO. 2
O Fehn~arv 2006. State Rar of Wisconsin CLE Books
Court of Appeals has expressly recognized the "instructive" value of federal precedent construing Federal Rule of Civil Procedure 37 as applied to cost-of-proof sanctions when the matters denied were thereafter proved at trial.3 Federal decisions construing the procedural counterparts to the Wisconsin Rules of Civil Procedure are persuasive, but are not ~ontrolling.~
A.
The function of requests for admissions is to define and limit the controversy between parties to a lawsuit, thus freeing the court and the parties to concentrate on the matters at the heart of the d i ~ p u t e . Requests ~ for admissions do this in two ways. First, admissions may facilitate proof on issues that cannot be eliminated from the case. For example, although the parties may not agree on the meaning of a particular document, one party can use requests for admissions to establish the foundation required for the document to be admitted into evidence. Second, admissions may narrow the issues by conclusively establishing facts required to prove some element of the case, thereby eliminating that element from the trial. The Wisconsin Supreme Court's holdings in Bank o f Two Rivers v. Zimmefl and Schmid Y. Olsen7 establish that admissions under section 804.11 may dispose of the entire case. was adopted from, and is nearly identical to, its counterpart provision in Federal Rule of Civil Procedure 36(b) and that, accordingly, the court could look to federal law for guidance in its analysis of "prejudice" under section 804.1l(2). Michael A.P. v. Solsrud, 178 Wis. 2d 137, 148,502 N.W.2d 918 (Ct. App. 1993). Wilson v. ContinentalIns. Cos., 87 Wis. 2d 310,316,274N.W.2d 679 (1979). Walter L. Harvey, Rules o f Civil Procedure, at 394 (Wisconsin Practice Vol. 3) (1975).
Several commentators believe that these functions are not truly within the scope of discovery and that requests for admissions are therefore not "true" discovery procedure^.^ The rationale for this position is that the party seeking the admission already knows the facts or has the documents and merely seeks an admission that will establish the facts or authenticate the document^.^ The authors of this chapter, however, believe that the distinction between requests for admissions and other true discovery procedures rests on too narrow a conception of the discovery process. Although most courts continue to distinguish between true discovery procedures and requests for admission, the distinction has almost no practical importance for practicing lawyers. The belief that requests for admissions are not properly part of discovery has led one federal court to hold that the deadline for service of requests for admissions is not governed by the general discovery cutoff in a scheduling order." A substantial number of other courts, however, have treated requests for admissions as being subject to discovery cutoff dates." The Eastern District of Wisconsin specifically requires that requests for admissions be scheduled to allow answers prior to the deadline.'' Aside from this issue, it should not matter whether requests for admission are part of discovery or not.
See, e.g., 8A Charles A. Wright et al., Federal Practice and Procedure: Civil 2d, at 524 (1994 & Supp. 2005) [hereinafter Wright et al.]. Id.; see also Schmid, 111 Wis. 2d at 240 n. 1 (Steinmetz, J., dissenting).
'O
Hurt v. Coyne Cylinder Co., 124 F.R.D. 614,615 (W.D. Tenn. 1989). See Gluck v. Ansett Australia, Ltd., 204 F.R.D. 217,219 (D.D.C. 2001).
l1
l2
Ch. 5 Pg. 4
Second, discovery enables a party to pin its opponent to a certain position. For example, litigators frequently take depositions not merely to learn the opponent's narrative version of the underlying facts, but to bind the opponent to a position that cannot be contradicted at trial without a loss of credibility. Requests for admissions are ideally suited to this purpose because section 804.1 l(2) mandates that an admission in response to a request conclusively establishes the fact admitted unless the court permits withdrawal of the admission at a later date.13 When a request is admitted, no contrary evidence regarding the matter admitted should be allowed into evidence. A request for admission, once admitted, is a judicial admission and "[a] judicial admission trumps e~idence."'~ A party can change an answer to an interrogatory or alter an account of the facts testified to at a deposition, but the party cannot so easily evade an admission made under section 804.11. Alternatively, a party may be intentionally vague or ambiguous in answering written interrogatories or deposition questions. Because a properly drawn request for admission focuses on one matter and requires either an admission or a denial of the truth of the matter, the option of evasiveness is largely foreclosed. In this sense, requests for admissions are an essential part of the strategic use of discovery. The various uses of requests for admissions can be seen by analyzing the litigation process. As a lawsuit progresses from the filing of a complaint to trial, the lawyers for all parties are developing their litigation strategies.I5
Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500,511,434 N.W.2d 97 (Ct. App. 1988); see also Mucek, 2002 WI App 60, 7 31, 252 Wis. 2d 426 ("The purpose of the admissions process 'is to expedite trial by establishing certain material facts as true . . . thus narrowing the range of issues for trial."' (quoting Asea, Znc. v. Southern Pac. Tramp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981))).
l3
Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir. 1996); see also Keller v. United ,States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (quoting Michael H. Graham, Federal Practice and Procedure 6726 (interim ed.) (stating that rule 36 admissions "have the effect of withdrawing a fact from contention")).
l4
Sections 5.5 to 5.7, infra, illustrate the strategic uses of requests for admissions in the litigation process.
O Fehn~arv 2 0 6 . State Rar of Wisconsin eLE Books
Ch. 5 pg. 5
> Practice Tip. Some attorneys who believe that certain allegations
in a complaint or certain affirmative defenses in an answer are without merit follow the practice of propounding contention interrogatories designed to elicit all facts that support these allegations or affirmative defenses.I6 What the attorney hopes to accomplish is to lay the groundwork to strike the allegation or defense. But by using an interrogatory, the attorney may be reducing the number of interrogatories available under a local rule.17 The attorney should consider using requests for admissions instead. Such "no liability" requests for admissions, if denied, can then be followed up with interrogatories requiring the opposing party to state all the facts supporting the denials.
l6 l7
Ch. 5 Pe. 6
draft a response that frustrates the purpose for which the interrogatory was submitted. Any lawyer who has taken a deposition can recite chapter and verse on the difficulties inherent in getting a witness to "just answer the question." And even when recent events are at issue, the party deponent's memory may fade during a deposition, as is demonstrated by the common answer, "I can't recall at this time." If they are clearly and concisely drafted, requests for admissions do not face these obstacles. Unlike answers to interrogatories, the range of permissible responses to a request for admission is limited. Section 804.1 1(I)@) provides that the respondent may admit the matter requested or may "specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter."18 The answering party cannot use the deponent's familiar ploy of fading memory. The provision quoted above requires the answering party to provide details supporting its claimed inability to recall the facts.19 Moreover, section 804.1 l(l)@) mandates that "[aln answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny." At least one federal court has interpreted identical language in Federal Rule of Civil Procedure 36 to require the answering party to specijj the reasonable inquiry undertaken."
Practice Tip. If the attorney decides that the opposing party has
. improperly failed to admit or deny by not undertaking the requisite inquiry, the attorney should file a motion to have the matter deemed admitted. Some attorneys may develop the habit of routinely serving an interrogatory that states, in substance, "For each request for admission for which you claim lack of information, identify each step taken and each person you contacted in attempting to answer the request."
See infra gg5.19-.23 (format of response). Princess Pat, Ltd. v. National Carloading C o p . , 223 F.2d 916,920 (7th Cir.
l8
l9
1955).
v. Food &Nutrition Serv., 580 F. Supp. 1564,1566 (D.N.J. 1984); see also Hay & Forage Indus. v. Ford New Holland, Inc., 132 F.R.D. 687, 694 (D. Kan. 1990) ("Rule 36 requires a detailed explanation for the inability of the respondent to admit or deny a request."); Audiotext Commc'nsNetwork, Inc. v. US. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625744 (D. Kan. Oct. 5, 1995) (unpublished).
20 Hun
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nf wieonm~in F
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f'h. 5 Po. 7
However, an attorney might want to consider not submitting such an interrogatory, and simply moving to have the matter deemed admitted if the opposing party fails to specify what reasonable inquiry was undertaken. Requests for admissions are also particularly useful in the summary judgment procedure because the Wisconsin Supreme Court has held that requests for admissions may concern a broad range of "facts." The Judicial Council Committee's Note, 1974, explains that the current statute, Wis. Stat. 8 804.11, unlike the former section 889.22, provides that "the request need not be limited to 'fact or facts,' but may seek, when appropriate, opinions of facts or the application of law to fact." . . . . The rule does not prohibit requests concerning "ultimate facts," nor does it matter that a plaintiff bears the burden of proof on the issues that he requests the defendants to admit . . . . It is also irrelevant that a request seeks an admission which would be dispositive of the entire case." It is sufficient to note here that a request for admission will not be deemed improper just because a request deals with the application of law to fact or an "ultimate fact" that disposes of an issue or even an entire lawsuk2' However, the use of requests for admission may become a trap for the unwary in summary judgment motions that involve multiple-party litigation, such as third-party claims. A federal appellate court has addressed the interplay between applying claims for contingent liability (such as third-party claims, which are premised on the third-party plaintiff's being held liable to the principal plaintiff) and the rules governing requests ~ for admission. In Langer v. Monarch Life Insurance C O . ,a~principal defendant argued that admissions it had made under Federal Rule of Civil Procedure 36 in response to a third-party defendant's requests for admission would not "ripen" until the principal defendant had been found liable to the principal plaintiff. The principal defendant reasoned that to hold otherwise "would allow every third-party defendant to force a defendant with a liability-over claim to admit defeat against either the plaintiff or the third-party defendant."24
22
23
The Third Circuit disagreed, holding that the primary defendant had created a nonexistent dilemma. If the third-party defendant's request were phrased broadly, e.g., as a request that the principal defendant admit flatly that it "was not liable" to the plaintiff (thus destroying the basis for the principal defendant's liability-over claim), the "proper answer to that request would be to object that the statement could not be admitted or denied, because the fact of actual liability would still be undetermined. . . . [A principal defendant can] admit only that it believed and had taken the legal position that it was not liable to [the principal plaintiff] (a legal position that it might win or lose at The Third Circuit correctly pointed out that such a limited admission would not expose the third-party plaintiff to a third-party defendant's motion for summary judgment.26 On the other hand, the court pointed out, the mere fact that a third-party plaintiffs claim is contingent on its own liability to the principal plaintiff should not shield the third-party plaintiff from the effects of its admissions concerning purely factual matters relevant to the third-party defendant's defenses to the liability-over claim. In this context, a third-party defendant may legitimately base its motion for summary judgment on an admission, because "[tlhird-party defendants do not have to wait for the plaintiff to succeed against the original defendant before filing motions for summary judgment .''27 The Langer decision emphasizes that counsel for parties that have asserted liability-over claims must carefully analyze requests for admission directed at the hypothetical nature of liability-over claims, in order to ensure that in their zeal to defeat the primary plaintiff's claim, they do not make admissions that are flatly inconsistent with their own theories of liability on their liability-over claims. Langer provides a useful road map for answering' such requests.
25
Id.
26
Id.
Id. at 804.
- -
See Ropfogel v. United States, 138 F.R.D. 579, 584 (D. Kan. 1991)
v. Federated Mut. Ins. Co., 110 F.R.D. 44 1,442-43 (N.D. Ind. 1986).
costs and fees incurred in taking the deposition that was necessitated by the answering party's denial.
30 See
3'
32
33
34
Ch. 5 Pg. 12
Books
In Kettner v. Milwaukee Mutual Insurance Co.,35 the defendant served a request to admit that "the value of the plaintiff's claim for injuries in this case, taking into account his own contributory negligence does not exceed $100,000." The plaintiff admitted the request. Following the admission, the plaintiff's attorney submitted an offer to settle for $90,000. None of the defendants responded to the offer. The jury's award, after reduction for contributory negligence, was $158,956.03.
On appeal, the defendant argued that because Schmid v. O l ~ e and n~~ Bank of Two Rivers v. Zimme?7 held that section 804.11 permits requests for admissions of "ultimate facts," the request for admission could be used to establish the value of the plaintiff's claim. The court of appeals stated that Schmid and Bank of Two Rivers both involved "application of a legal concept to a set of facts, which are fixed in time and susceptible to v a l ~ a t i o n . "The ~ ~ value of a claim, the court said, is "inherently variable, being based on a series of factors that constantly change prior to and during the The court also reasoned that the request for admission in Kettner conflicted with the specific settlement offer provisions of section 807.01. The court concluded that "the total value of a personal injury claim is not a matter that a party can truthfully admit or deny under sec. 804.11."40 Although the scope of requests involving the application of law to fact is quite broad, requests that seek to elicit pure legal conclusions are impr~per.~' Nor is it proper to request that party admit that it will not present evidence of a certain nature because the purpose of requests for
35
38
39
Golden Valley Microwave Foods, Znc. v, Weaver Popcorn Co., 130 F.R.D. 92,96 (N.D. Ind. 1990);cJ: Intertech Res., Inc. v. Vital Signs, Inc., No. 94 C 5758, 1996WL 637860 (N.D. Ill. 1996) (holdingthat requests quoting language fiom the claims of patent in suit and asking for admissions that various elements in the prior act satisfied the quoted language held proper).
41
mF
P I . ~ ,m ~n ~n,
C'h. 5 Po. 13
admissions is to narrow issues for trial be establishing facts, not by predetermining trial strategy:'
42
43
45
American Auto. Ass'n v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991).
46
admissions is a judicial admission and, as stated in Murrey v. United state^:^ "a judicial admissiontrumps evidence." Indeed, a jury finding that is inconsistent with a matter established through requests for admissions will be disregarded, and the party will be bound by the facts established in the party's responses to the requests.48 In Traynor v. Thomas & Betts C o p ,4' when affirming the trial court's award of attorney fees, the appellate court relied on a response to a request for admission to find that Thomas & Betts had advanced a position that was not substantially justified. This does not mean, however, that a matter conclusively established under section 804.11 will necessarily be admitted into evidence. All general objections to the admissibility of evidence-that is, those that do not seek to contradict the admission-may be raised at the trial.'' For example, objections that a matter admitted is irrelevant or would deprive a party of the right to cross-examine a key witness would be proper at the trial, as would an objection that an admission is inadmissible hear~ay.~' Admissions that result from a party's failure to respond to requests for admission are also subject to all pertinent objections to admissibility that may be interposed at
Prmtice Tip. If a party misses the deadline for responding to a request for admission, the party's attorney should not wait for the other side to move for summary judgment. Instead, the attorney should
47
73 F.3d 1448, 1455 (7th Cir. 1996). Calhoun v. United States, 591 F.2d 1243, 1246 (9th Cir. 1978). 2003 WI App 38,260 Wis. 2d 345,659 N.W.2d 158. Al-Jundi v. Rockefeller, 91 F.R.D. 590,595 (W.D.N.Y. 1981).
48
49
50
Al-Jundi, 91 F.R.D. at 592 (discussing relevance); Goldman v. Mooney, 24 F.R.D. 279,280 (W.D. Pa. 1959) (discussing opportunity for cross-examination); Tholp Sales Coy. v. Dolese Bros., 453 F. Supp. 196, 202 (W.D. Okla. 1978) (discussing hearsay).
51
52
immediately move for additional time to respond and for permission to withdraw or amend the deemed a d m i s ~ i o n s . ~ ~ Moreover, the conclusivepresumption applies only if the court does not permit withdrawal of the admission. Section 804.1l(2) provides that a court may permit withdrawal of an admission when the presentation of the merits will be subserved by the withdrawal and the party who obtained the admission fails to satisfy the court that withdrawal will prejudice that party in maintaining the action on the merits.54 The court stated that "[a] trial court's general authority to maintain the orderly and prompt processing of cases provides authority to deny withdrawal, apart from the two factors in Wis. Stat. 9 804.11(2)." Use of admissions against the answering party is limited to the pending action in which the requests were p r ~ p o u n d e d . The ~ ~ statute precludes the use of an admission for any other purpose and specifies that an admission may not be used against the answering party in any other proceeding. However, any adverse party-not only the party requesting the admission -may rely on an opponent's a d m i s ~ i o n s . ~ ~
authority per section 809.23(3)) (citing with approval trial court's admonition of nonanswering party for failure to move immediately for relief).
See Bank of Two Rivers, 112 Wis. 2d at 633; infra 5.24. In Mucek, 2002 WI App 60, 7 35, 252 Wis. 2d 426, which is discussed in detail in section 5.24, infra, the court addressed the meaning of "prejudice," and emphasized the
54
discretionary nature of a trial court's decision to permit withdrawal of an admission if the two conditions are met.
55
56
c h . 5 PP. 16
defendant by using the defendant's response to plaintiff A's request? Does the word "admission" in the last sentence of section 804.1 l(2) refer only to a conclusive admission? The authors have found no cases on point.
2. [ 5.111 Denials
Denying a request for admission simply leaves the matter upon which admission was requested in dispute for trial. Nothing in section 804.11 provides that denials have the same conclusive effect as admissions. The most important practical effect of a denial is that it opens the door to cost-of-proof sanctions under section 804.12(3). Section 804.12(3) permits a party who proves the genuineness of a document or the truth of a matter denied by the answering party under section 804.1 1 to apply for an order forcing the answering party to pay the requesting party "the reasonable expenses incurred in the making of that proof, including reasonable attorney fees."57 In Michael A.P. v. Solsr~d,5~ the court extensively discussed both the grounds for awarding cost-of-proof sanctions and the definition of what constitutes reasonable expenses incurred in the proof of the matters denied.59
57
Wis. Stat. 5 804.12(3). 178 Wis. 2d 137,502 N.W.2d 918 (Ct. App. 1993).
See Wentland v. American Fam. Mut. Ins. Co., No. 93-3310, 1995 WL
59
271772 (Wis. Ct. App. May 10, 1995) (unpublished opinion not to be cited as precedent or authority per section 809.23(3)) (upholding trial court's imposition of sanctions on defendant insurance company for unreasonable denial of insured's negligence); infra 5 5.22.
request for admission until 45 days after the summons and complaint have been served on that defendant.60The plaintiff, in contrast, is not protected by this 45-day period.61
Practice Tip. Section 802.02(1)(a) requires a complaint to contain a "short and plain statement of the claim." A complaint containing
detailed evidentiary allegations may be dismissed for violating.this rule.62 An attorney who is inclined to file a detailed complaint should consider instead serving requests for admissions with the summons and complaint. Such requests would seek admission of evidentiary facts and might request admission of the genuineness of exhibits attached to the requests. By serving such requests, an attorney can obtain detailed admissions without risking dismissal of the complaint. Section 804.11 does not expressly state the last date upon which requests for admissions may be served. Courts that follow the provisions of section 802.10 governing scheduling conferences, regularly provide in their scheduling orders a date by which all discovery must be completed. Most judges in their scheduling orders also require that discovery devices prescribing a specific period for response, such as interrogatories and requests for admissions, must be served by a date that will permit the answers to be served before the discovery cutoff date. A sample provision is as follows: "All requests for discovery must be served by a date sufficiently early so that all nonexpert discovery in this case can be completed no later than December 15,2005." Local rules may also impose deadlines. Parties should submit requests for admissions well in advance of any discovery deadline. Note, however, that some courts exempt requests for admission from the discovery cutoff in a scheduling order on the grounds that requests for admission are not true discovery devices.63
60 Wis.
Stat. 3 804.1l(l)(b).
61 See infra
62
3 5.18.
See Windsor v. A Fed. Executive Agency;614 F. Supp. 1255 (M.D. Tenn. 1983), affd, 767 F.2d 923 (6th Cir. 1985); c f Fed. R. Civ. P. 8. See, e.g., Hurt, 124 F.R.D. at 615. But see Gluck v. Ansett Austrailia, Ltd., 204F.R.D. 217 (D.D.C. 2001); E.D. Wis. Civ. L.R. 26.2.
63
64
66
67
Id. at 620.
125 F.R.D. 372,374-75 (S.D.N.Y. 1989).
> Practice Tip. Counsel should determine whether local rules limit
the number of requests for admissions. If not, counsel faced with a limit on the number of interrogatories may be able to employ requests for admissions instead of interrogatories. Notwithstanding the lack of an express numerical limitation on requests for admissions, courts will still exercise their inherent power to control discovery to limit the use of requests for admissions if a party's requests impose an intolerable burden or demonstrate bad faith or abuse.69
)Practice
discovery. Local rules dealing with discovery are responses to perceived discovery abuses.70 In Misco,less than one month after filing the complaint, the plaintiff served requests for 2,028 admissions, comprising 343 pages. After the plaintiff voluntarily withdrew 580 requests, this still left 1,440 requests, comprising 225 pages. Small wonder that the court found the serving of these 2,028 requests to be "both an abuse of the discovery process and an improper attempt to circumvent the local district court rule which limited the number of interrogatories to thirty."71 The attorney should consider using sets of requests, each set reasonably limited in number. The attorney should always aim not
See Aaron E. Goodstein & Howard A. Pollack, Playing by the Rules in Federal Court, Milwaukee Law., Winter 1984, at 4.
70
merely to be able to defend any allegedly objectionable requests, but to be able to evoke from the judge a visceral response that the discovery is reasonable and that the objector is obstructing the discovery pro~ess.7~
See also Safeco ofAm. v. Rawstron, 181F.R.D. 441,445-46 (C.D. Cal. 1998) (allowing interrogatoriesthat request the bases for the denials of each of 50 requests for admissions essentially transforms each request for admission into an interrogatory); In re Olympia Holding Cop., 189 B.R. 846,853 (Bank. M.D. Fla. 1995) (holding that use of interrogatories disguised as requests for admission, in attempt to circumvent rules limiting number of interrogatories, is abuse of discovery process).
72
73
74
Havenjield Cop. v. H & R Block, Znc., 67 F.R.D. 93,97 (W.D. Mo. 1973). Johnstone v. Cronlund, 25 F.R.D. 42,46 (E.D. Pa. 1960).
requests, because the proponent has taken the time necessary to identify precisely the matters on which admission is requested. Courts recognize that specificity and clarity are essential to the effective use of requests for admissions. Noting that a party "drafts complex requests at his peril," the court in DiederichY5held that a respondent could legitimately deny an entire request containing multiple, interdependent issues even if the denial rested solely on a single assertion of fact. However, when requests were capable of being separated into distinct components following a logical or chronological order, the Diederich court required the responding party to deny or admit the separate matters in sequence, even though they were contained within a single request.76 Diederich emphasized the point that there is no substitute for precision when drafting requests for admissions. In Michael A. P., the court rejected a responding party's efforts to evade precisely drafted requests. The court ruled that a request was not improper simply because it may have required explanation; instead the court expressly recognized that section 804.11 requires answering parties to qualify their responses when necessary. One of the requests asked the defendant Solsrud to admit that he was "the" general contractor on a project. Solsrud argued that he was unable to answer the request because there was more than one general contractor, making him only a general contractor. The court said that good faith required Solsrud to have, at the very least, denied the assertion and explained that there was more than one general contractor and to identify that portion of the project for which Solsrud was a general c ~ n t r a c t o r . ~ ~
46
77
75
76 Id. 77 78
Ch. 5 Pg. 22
1 . . Each matter upon which an admission is requested should be identified in a separate paragraph. 2. Requests containing subparts, conjunctives, or multiple assertions should be avoided entirely. 3. Requests should be so narrow and concise that explanation or qualification is unnece~sary.~~
79 See
80
81
82 Id.
admitted all material facts contained therein, even though he may have denied them in his pleading^."^^ The lesson seems clear: regardless of the contents or character of requests for admissions, complete failure to respond is never appropriate. For at least three reasons, a party should serve a written response even if the party wishes to admit the matters requested. First, a written response permits the responding party to maintain control over the scope of the admission. Some individual requests may require admission or qualification, and some may not. Failing to provide a written response leaves the definition of a request for admission entirely in the hands of its proponent. However, counsel should remember that qualifications or objections responding to requests for admissions must have a good faith basis; any efforts to evade or subvert reasonable discovery requests are subject to sanctions. Second, if other discovery motions are filed against a party who has ignored requests for admissions, the party's failure to serve any response may be offered as evidence of its unwillingness to cooperate in the discovery process. For example, in reversing a trial court's decision to allow the introduction of evidence that contradicted admissions that had been established by a failure to respond to requests, a federal appellate court relied on the responding party's "patent disregard" of other discovery requests and scheduling orders.84 Third, instead of merely refusing to respond to objectionable or poorly drafted requests for admissions, counsel should always take the opportunity to explain why a request is objectionable or incoherent. It may be too late to raise such arguments in a later attempt to withdraw the admissions that have resulted from a failure to respond.85
83
Bank of Two Rivers, 112 Wis. 2d at 630-3 1. Ass'n, 930 F.2d at 1121.
84 American Auto.
Ch. 5 Pg. 24
2. [ 5.211 Objections
A party must state the reasons why requests for admissions are obje~tionable.'~Generalized criticisms are not sufficient." Moreover, failure to make objection and present argument concerning supposedly improper requests will result in waiver.g0
Several potential grounds for objection are clearly impermissible. A party may not object solely because the request deals with a genuine issue for trial. The party may deny such a request (subject to cost-of-proof sanctions under section 804.12(3)) or set forth reasons why the matter cannot be admitted or denied?'
'
>
86 Wis.
87 E.D.
Stat. 9 804.11(l)(b).
Wis. Civ. L.R. 36.1; see infra App. 5B (sample response to requests for admissions). Wis. Stat. 9 804.11(1)@).
89
Moscowitz V . Baird, 10 F.R.D. 233 (S.D.N.Y. 1950). See Michael A.P., 178 Wis. 2d at 151 n.5.
Ch. 5 Pg. 25
answering party had reasonable grounds to believe, at the time of denial, that the party could prevail at triaLg2 Neither may a party object to a request because an admission seeks an opinion of fact or the application of law to fact. Section 804.11(l)(a) expressly authorizes such requests. In addition, a request that seeks an admission disposing of the entire case is not for that reason ~bjectionable?~ Further, a request is not objectionable because it concerns matters lmown by a third party, rather than by the responding party?4 In this last situation, the appropriate response is to make a reasonable inquiry, then to refuse to admit or deny if that inquiry does not disclose information sufficient to permit admission or denialY5 If the burden of responding to a request is greater than the responding party believes it should reasonably have to bear, the party must state specifically what efforts have been made or why reasonable efforts could be unavailing in obtaining the requisite knowledge.96However, some decisions have held that a responding party's obligation to consult nonparties in connection with requests for admission extends only to a review of the nonparty's sworn deposition te~timony.~' Objections are appropriate when requests are compound or multiple, thus violating the requirement that "[elach matter of which an admission is requested shall be separately set forth."98A similar objection may be raised to vague or ambiguous requests. Both of these objections, however, should be supported by statements specifying how the request is unanswerable because it is multiple, or identifying the vague or ambiguous terms.
b Practice Tip. There are significant advantages to raising specifically grounded objections to requests for admissions rather than attempting to sort through confusing requests in order to admit whatever Wis. Stat. 9 804.12(3);Nelson v. L & J Press C o p , 65 Wis. 2d 770,783-84, 223 N.W.2d 607 (1974) (refusing to impose cost-of-proof sanctions under predecessor statute to current section 804.1 1).
92
93
94 Al-Jundi,
95
91 F.R.D. at 593.
Id. at 594.
96 Id. 97
98
See Diederich, 132 F.R.D. at 620; Dubin, 125 F.R.D:at 375. See Wis. Stat. 9 804.11(l)(b).
truth they may contain. First, an objection gives the requesting party the burden of moving under section 804.1 l(l)(c) for an order determining the sufficiency of an objection. Second, the potential consequences of an unfounded objection are less severe than those of a qualified or limited admission that cannot be justified. If a court finds that an objection is unjustified, the court "shall order that an answer be served."99 If an answer does not comply with the requirements of section 804.11 the court may order an amended answer or may order that the matter is admitted."' On its face, the statute does not give courts the power to deem a matter admitted simply because of an unjustifiable objection.
A party may also object that a request seeks irrelevant information, since the scope of all discovery under chapter 804 is limited to matters
, 1 0 1 "relevant to the subject matter involved in the pending action.7
3.
I 5.221 Denials
99 Wis.
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Stat. 8 804.1l(I)(c).
Id.
See Wis. Stat. $804.01(2)(a);c$ Fed. R. Civ. P. 26(b)(l) (limited to matters relevant to the claim or defense of any party).
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admission.104And failure to respond to any particular part of a request has been treated as an admission.'05 There is no reason to believe that Wisconsin courts will be more generous.
In Michael A. P., the court of appeals affirmed a cost-of-proof sanction of $78,131.88, and rejected arguments that it termed "hypertechnical, "Io6 The requesting party had properly served requests semantic asking the defendant Solsrud to admit, for example, that he was "the" general contractor on a project. Solsrud argued that he was unable to answer the request because there was more than one general contractor, making him only "a" general contractor. The court said that good faith required Solsrud to have, at the very least, denied the assertion, explained that there was more than one general contractor, and identified that portion of the project for which Solsrud was a general contra~tor.'~~
The court specifically cited the directive in section 804.1 l(l)(b), that "when good faith requires that a party qualify an answer or deny only a part of the matter.. .the party shall specify so much of it as is true and qualify or deny the remainder."'08 The court explained that the responding party had abused the discovery process itself "by using denials to obscure and complicate the issues and to mislead" its adversary.10g At first glance, Michael A.P. appears to be at odds with the federal courts' hostility to qualified or limited admissions. However, on closer analysis, Michael A.P. is consistent with those federal cases that reject "disingenuous, hair splitting di~tinctions,""~ and denials that seek to avoid the "essential truth" of requests,"' as devices for avoiding the admission of
United States v. AT&T, 83 P.R.D. 323,333 (D.D.C. 1979). 178 Wis. 2d at 150. Id. at 149 n.3. Id. at 149. Id. at 156. Thalheim v. Eberheim, 124 F.R.D. 34,35 @. Conn. 1988). HavenJield Corp. v. H & R Block, Inc., 67 F.R.D. 93,97 (W.D. Mo. 1973).
Q February 2006, State Bar of Wisconsin CLE Books
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Ch. 5 pg. 28
matters that a party knows to be true.'12 It is fair to say that the determining factor in MichaelA. P. was not the technical form of the categorical denials, but the court's displeasure with the fact that, on adverse examination, Solsrud readily admitted the matters he had denied in response to the requests.
112
Thalheim v. Eberheim, 124 F.R.D. 34,35 (D. Conn. 1988) (citing Walsh v. Connecticut Mut. Life Ins. Co., 26 F. Supp. 566,573 (E.D.N.Y. 1939)).
113
Coca-Cola Bottling Co. v. Coca Cola Co., 123 F.R.D. 97, 105-06 (D. Del. 1988).
114
that "[elach matter. . . shall be separately set forth." Objecting instead of attempting to formulate a qualified admission or denial avoids the risk that the response will be deemed an admission.
Deny
An answer alleging a responding party's inability to admit or deny a matter is proper only when the responding party has made a reasonable inquiry and the information known or readily obtainable by that party is insufficient to enable either an admission or a denial.'16 The mere fact that the request concerns information possessed or known by someone other than the answering party does not, by itself, constitute an inability to admit or deny. Instead, the answering party must make a reasonable inquiry into the information held by other parties.
See, e.g.,Asea, Znc. v. Southern Pac. Transp. Co., 669 F.2d 1242,1245-47 (9th Cir. 1981); see also Hay & Forage, 132 F.R.D. at 694 ("Rule 36 requires a detailed explanation for the inability of the respondent to admit or deny a request"); Audiotext, 1995 WL 625744, at *2.
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P h C D n 2n
0 Fehrnaw 3nnh. State Rar of Wisconsin CLE Books
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120
See Micro Managers, 147 Wis. 2d at 5 11; see also Farr Man & Co. v. MN Rozita, 903 F.2d 871,876 (9th Cir. 1990). Wis. Stat. 5 804.1l(2); see Micro-Managers, 147 Wis. 2d at 5 11; see also Coca-Cola Bottling Co., 123 F.R.D. at 102. On appeal, the standard of review is abuse of discretion. Smith v. FarZey, No. 94-1046, 1995WL 216896 (7th Cir. Apr. 11,1995) (unpublishedorder not to be cited or used as precedent except to support claim of res judicata, collateral estoppel, or law of the case in any federal court within circuit per 7th Circuit Rule 53(b)(2)) (also stating that party who obtained i t yo f admission must prove that it would be prejudiced by withdrawal); Banos v. C Chicago, 398 F.3d 889, 892 (7th Cir. 2005) (reviewing the refusal to allow withdrawal of admissions only for abuse of discretion).
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