Making Request for Admissions (“RFAs”) Your Friend By Gregory Rutchik If the adage that “simple questions should

yield simple answers” is true, then the request for admission is without a doubt one of the best tools for getting there. I know, “truth” isn’t what litigation is about but at least RFAs help us get a little closer to justice. The RFA, in short, is a plainly worded question posed to the other side that, if true, establishes an essential fact. Some lawyers get confused by the fact that the result of the RFA is to yield either an admission or denial of the fact posed but focusing for a moment on the purpose of the RFA it is to remove from dispute an essential question of fact. The Federal Rules of Civil Procedures Rule 36 guides the form and unlimited number of requests for admissions in Federal Court. State civil procedure rules vary on many things but most state civil procedure rules provide for unlimited requests for admissions. The major caveat here is that under both Federal and state civil rules of procedure – and here is where many lawyers get messed up – the number of interrogatories ARE limited. The confusion occurs when counsel asks in special interrogatories (above and beyond the form interrogatories allowed in most states) for the responding party to set forth its factual basis for a denial. The result is almost always an excess number of interrogatories than permitted – often 35 – and the responding party is permitted to not answer the excess or in some cases not answer any of the additional interrogatories that ask to set for the basis for any denial of a request for admission. (See e.g. US District Court for Northern District Local Rule 36-2 which permits these “additional interrogatories” “to the extent that a party is entitled to propound additional interrogatories.”) This is where the fun begins. Because RFA’s are unlimited. On must take a two stepped approach. Outline in simple English. First, clearly outline for yourself and your client the factual elements that you must establish to make out your prima facie claim or defense. The basis themes are almost always divided into liability and damages. If you are on the defensive – not to suggest that there are any defense counsel out there but rather that cross-claims or counter-claims often come a plaintiff’s way, outline the basis factual elements that you will need to establish your basis defenses. When in State Court, Get Special RFA’s out ASAP. In California and maybe in your jurisdiction, the plaintiff can propound discovery within 10 days of serving the complaint, I often propound special RFA’s, not just form one’s to lock in some basics. You can always send out more but some of the basic issues need to be firmed up early and they won’t see it coming. Use RFA to establish your timeline or to flush out theirs.

One of the first things I try to do is to establish what happened when. The sooner I can lock the opposing side into a timeline the better because certain facts are essential to proving or disproving their version. Also, removing facts from dispute will greatly simply your discovery and your lining things up for a dispositive motion. Keep it simple. In the business tort environment or in any type of litigation almost, a time line must be established. If your version of facts are true, you can establish your case. Set out plainly worded questions to establish each and every factual component of your time line. I stress the importance of plainly worded questions. Leave out of your question any word that needs to be defined for now. One of the most common objection to an RFA is that it is vague and ambiguous and if you use even a fifty cent word, many discovery magistrates will sustain the objection and you will have to repropound, not to mention spend your client’s money opposing a motion to quash or losing your motion to compel. When I say simple, I mean dumb them down even more. You should be able to read them out loud to a child of four and even they should understand them. The reason for this is simple. A reasonable question is often simply asked. Remember the other adage about explanations sounding reasonable are often true. For example, if the question “did John write the software that became Petersoft’s product?” is important, one might ask: Admit that John went to school to learn to write software. Admit that John learned to write in the software language C++. Admit that John graduated from MIT with a PHD in Computer Sciences in December 1996. Admit that John accepted a job to work as a computer programmer for Petersoft to start on January 1, 1997. Admit that John’s first assignment after January 1, 1997 was to work on project “Skype.” Admit that John wrote software for project “Skype” from Janaury 1, 1997. Admit that John had no knowledge of project Skype prior to January 1, 1997. Admit that John did not write software for the project “Skype” prior to January 1, 1997. Stay away from “relates to” , “includes” and all of those connectivity/relational type words. They are confusing and almost always can be avoided. RFA’s with ‘relates to” are almost always met with the favorite “vague and ambiguous” objection so anticipate this problem. Ask one question at a time. Remember, the RFA is unlimited. The second favorite objection is that the question is compound. Do not even think about breaking an RFA into two or three if it even smells slightly of a compound concept. So if you need to establish that John was an employee of your client Petersoft from a certain date you

might ask (aka propound) the following RFA’s: Admit that John was an employee of Petersoft from January 1, 1997 to December 30, 2005. Admit that John worked for no other business other than Petersoft from January 1 to December 30. Admit that John was not EVER an independent contractor for Petersoft Stay clear or double negatives but do not avoid getting a NO. I cannot count on my fingers or toes the number of RFA’s I get where I need a calculator due to the double or triple negatives. It is much easier to get the responding party to answer a DENY to a straight question than to ask a double negative in the hopes of getting an ADMIT. Where ever possible, strip your RFA’s of double negatives and go for a meaningful denial. For example, don’t ask Admit that YOU never used the land without permission when you can ask Admit that you used the land with permission. If you want a deny, you’ll get one. Simple definitions. The first difficulty is writing clearly. Nothing is more vital than defining the words you use clearly to avoid sustainable vague and ambiguous objections. Rather than over define however, define only the words that are essential to your timeline. Remember why you are doing discovery. If at first you do not succeed or you’ve gone off in the wrong direction, do more RFA’s. Also, when a response comes in, in additional to calendaring the respondent’s date to service responses, calendar the last date to file a motion to compel. Once their responses come in, go thru them and get a meet and confer letter out to describe why their responses are incomplete or their objections improper. With these reminders, your use of RFA’s should increase and improve. Good luck out there.

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