Requests for Admission

Requests for permission are under-utilized in many cases. They are a uniquely powerful discovery tool, yet many lawyers rarely serve them. Of course, like interrogatories, they are drafted by lawyers and responded to by lawyers, and thus have the potential to waste considerable time and money if not used very strategically. A focused, precisely and neutrally drafted request for admission can yield meaningful benefits for the sender, though, and a poorly handled request for admission can cause substantial harm to the receiver, so mastering this discovery tool is important.

Topics for Requests for Admission

     The primary purpose of Rule 36 is to narrow the issues that need to be resolved at trial, thereby streamlining the trial. To that end, Rule 36 authorizes requests for admission addressing two categories of topic: facts or the application of law to facts; and the authenticity of documents (to avoid the need to have a record custodian appear and testify as to a document’s authenticity). Note that this latter category is limited to authenticity, it doesn’t contemplate requests to admit admissibility of documents—that’s a determination that the court makes depending on many circumstances and often cannot be assessed in isolation in advance of trial.

Procedures

     Requests for admission are a discretionary discovery device and any party may choose to serve them at any time during discovery without leave of court. Rule 36 does not set any limit on the number of requests, though some courts have local rules establishing a limit. There are, however, a number of idiosyncratic procedures for requests for admission and understanding these procedures can be vital.

Deemed Admissions

     The first, and most important, procedural aspect is the consequence of failing to provide a timely response. The consequence of failing to respond to interrogatories or document requests within 30 days or to obtain an extension of time to respond can be annoying—generally waiver of objections—but isn’t typically disastrous. Failure to respond to requests for admission can result in deemed admissions that determine who wins and who loses the entire action. For this reason, it is critically important that you calendar the due date for responding to requests for admission and then ensure that you either comply with the deadline or obtain an extension of time to respond. See Herrera v. City of Palmdale, 2024 WL 3503064 (C.D. Cal. 2024).

Binding Admissions

     Furthermore, admissions under Rule 36, whether deemed by failure to respond or based on actual affirmative responses, are more powerful than admissions obtained by any other discovery technique. Admissions obtained through depositions or in responses to interrogatories are generally admissible at trial, but they are not conclusively established. Thus, with an admission in a deposition or interrogatory response, the party making the admission can attempt to back away from the admission at trial by offering contradicting testimony or documents—they jury or judge might or might not credit this contradicting evidence, but the party is not foreclosed from trying. In contrast, admissions under Rule 36 are conclusively established and may not be controverted or explained away at trial. See Id.

Improper Denials

     Understanding the conclusive, binding nature of admissions, litigators may be tempted to deny everything. Anticipating that temptation, Rule 36 includes a provision to disincentivize indiscriminate denials—if the court believes that the responding party did not have a good faith basis for a denial and the requesting party succeeds in proving the truth of the denied matter, the court will likely require the responding party to pay the requesting party’s costs of proving the matter, including the attorney’s fees incurred in making that proof. Those costs can include the discovery that the receiving party takes to prove the denied matters and the costs of presenting that proof at trial. Not only can these costs be substantial, the party being ordered to pay an opponent’s lawyers is likely to be furious (perhaps at their lawyer). See Longoria v. Cnty. of Dallas, 2016 WL 6893625 (N.D. Tex. 2016).

Objections

     In addition to admitting or denying a request outright, responding parties have two options. First, the responding party may “state in detail why the answering party cannot truthfully admit or deny it.” F.R.C.P. 36(a)(4). This response requires an investigation of the matter set forth in the request. Second, the responding party may interpose objections.

Typical grounds for objection include that the request would require the disclosure of privileged matters, that the request is so vague or ambiguous that the responding party cannot answer it, or that the request seeks a pure legal conclusion without requiring the application of facts specific to the matter.

Conversely, a party may not properly object to a request for admission on the basis that the serving party already knows the answer, that the request calls for opinions or contentions, that the request invades the province of the jury, or that the request speaks to the ultimate issue of the case. Allowing these improper objections, the courts have held, would frustrate that purpose.

Motion to Determine Sufficiency

     A party believing that an opponent’s objections to requests for admission are improper or that the response is insufficient may file a motion to determine the sufficiency of the answer or objection under Rule 36(a)(6). If the court agrees that the answer or objection was improper or insufficient, the court may require the responding party to provide a supplemental response or deem the matter admitted. Generally, the party losing a motion to determine the sufficiency of a response must pay the other party’s expenses incurred in connection with the motion, including reasonable attorney’s fees. See Smith v. City of Chicago, 2024 WL 4265238 (N.D. Ill. 2024).

Withdrawing or Amending Responses

     The procedures for altering responses to requests for admission also differ from the procedures for altering responses to other forms of written discovery. Rule 26(e) provides a duty to supplement most discovery responses in the event the responding party learns that its response was incorrect or incomplete at the time of the request or has since become incorrect or incomplete.

That same duty to supplement extends to denials of requests to admission, but not to admissions. Instead, court permission is required to withdraw or amend an admission. Furthermore, courts do not simply rubber stamp requests to withdraw or amend admissions. Rather, a court will permit withdrawal or amendment only if doing so would encourage a decision on the merits of the action and if the court finds that the requesting party would not be prejudiced in maintaining or defending the action on the merits if the court allowed the responding party to amend or withdraw its responses. Although the courts generally prefer to have disputes settled on the merits rather than by procedural matters like deemed admissions, the potential prejudice caused by a late withdrawal of an admission is a critical component of this analysis—it may be too late for the requesting party to conduct the discovery it would have conducted in the absence of the admission, and disrupting the case schedule to reopen discovery can be prejudicial as well. In general, the longer the requesting party has relied on the admission (and has foregone discovery to support the admitted matter), the greater the likelihood that the court will find that prejudice would result from allowing the responding party to withdraw or amend the admission. See Herrera v. City of Palmdale, 2024 WL 3503064 (C.D. Cal. 2024).

******

Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the February 2025 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2025 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.