As a young attorney, I loved requests for admission. Right out of the gate, I’d serve a bunch of them asking my opponent to admit that they had no case and hope that the opponent’s counsel would forget to timely respond. Because if responses to requests for admission aren’t timely served, the subjects of the requests for admission are deemed admitted. See Tex. R. Civ. P. 198.2(c); Fed. R. Civ. P. 36(a)(3). It would be just like winning the lottery (I assume).
Over time, I stopped serving such “case dispositive” RFAs, because (i) most of the time, your opponent timely responds denying them, and (ii) even if they didn’t, it’s highly unlikely that the failure to answer such RFAs would make a difference (because a judge is very unlikely to take any action based on a failure to respond to case-dispositive RFAs). Instead, I generally use RFAs to ask my opponent to admit things that should not be controversial—e.g., admit that you signed the contract, admit that the contract is authentic, etc.
A related reason to serve “case dispositive” RFAs may be that, if your opponent does timely respond, and denies the RFA, and you ultimately prove that the opponent should have admitted the RFA, you might obtain some relief. Under the Federal Rules, for example, the recovery of attorney’s fees is a possibility if “a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true[.]” Fed. R. Civ. 37(c)(2); see also Tex. R. Civ. P. 215.4(b) (“If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 198 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney fees.”). I’ve never seen it happen in any of my cases, but I guess there’s always a chance . . .
This brings me to the Texas Supreme Court’s decision in Medina v. Zuniga (available here), decided on April 26, 2019. In Medina, at the outset of the litigation “the plaintiff essentially asked the defendant to concede his negligence in every possible respect and confess he was the sole cause of the accident at issue.” But “[t]he defendant predictably denied those requests.” At trial, “the defendant made the strategic decision to concede ordinary negligence but contest the plaintiff’s gross-negligence claim.” (The first time that the defendant indicated that he would not contest his negligence was in opening statements.) The defendant denied that he was negligent in response to the plaintiff’s RFA.
After prevailing at trial, the plaintiff asked the district court to award sanctions “in the form of reasonable expenses and attorney’s fees incurred in proving up the negligence issues that the defendant ultimately conceded.” The district court awarded sanctions, and the court of appeals affirmed.
The Texas Supreme Court reversed. Although the defendant had argued that, when he denied the RFA, he reasonably believed that he might ultimately prevail in showing he was not negligent, that did not matter, as sanctions cannot attach to the denial of a merits-preclusive request:
Requests for admission are a tool, not a trapdoor. They primarily serve to simplify trials by eliminating matters about which there is no real controversy, but which may be difficult or expensive to prove. When used as intended, requests for admissions are useful in addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents. . . . [T]hey were never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense. . . .
It is axiomatic that the plaintiff bears the burden to prove the defendant’s negligence. It cannot follow that the defendant who puts the plaintiff to her burden should later face sanctions for not admitting what he was entitled to deny. Our rules do not, strictly speaking, prohibit merits-preclusive requests for admissions. But due process nevertheless limits the extent to which sanctions can attach to denials of those requests. Simply put, merits-preclusive requests for admissions that carry the threat of sanctions risk putting the responding party to an impossible choice: give up your case now or face sanctions later. Worse, the responding party typically will be put to this election long before any significant discovery has occurred, leaving him unable to make an informed decision on whether to concede or contest liability.
That is not how our system works. Just as a defendant may answer the claims against him with a general denial, he may also deny a merits-preclusive request for admission for which the other party bears the burden of proof. The very nature of the request provides the respondent “good reason” for failing to admit. Likewise, absent present knowledge that he will later concede he acted negligently, a defendant acting in good faith when responding to requests for admissions may maintain that his conduct was consistent with the ordinary standard of care. This is especially true at the outset of discovery. In this case, Medina decided at trial to concede negligence he had thus far denied. He was entitled to base this decision on how various aspects of the case had turned out—discovery, pre-trial rulings, jury selection, etc. And he was entitled to do so without fear he would be unduly punished for defending himself at the case’s outset.
We need not painstakingly examine each of the requests for admissions made the basis of Zuniga’s motion for sanctions to understand the gist of her argument. Through a battery of requests, she asked Medina to admit his negligence and complete responsibility in causing the accident. He initially refused, but later acceded. These facts do not give rise to sanctionable conduct under Rule 215.4. The requests at issue did not seek to narrow the contested questions for trial by eliminating noncontroversial issues or determining the genuineness of any relevant documents. Rather, Zuniga sought to litigate the entire case in one fell swoop of discovery—or at least to force Medina to take a position on every conceivable question on the merits without the benefit of a full discovery period.
We do not doubt this is standard practice for many litigators, and we do not hold that such requests are outside the scope of Rule 198. But we reiterate: requests for admissions are no method for trying the merits. And we will not reward their use in that manner by upholding sanctions like those granted in this case. . . .
Parties may change their minds on whether to defend or concede an issue on the merits for any number of reasons, including evidence uncovered through discovery, pre-trial rulings that alter the complexion of the case, or even the selection of the particular jury to hear the case. So although Medina certainly was permitted to contest sanctions on the ground that he reasonably thought he might finally prevail, this defensive argument is not his only recourse. Rather, parties defending against a Rule 215.4 motion based on merits-preclusive requests for admissions can simply argue a “good reason” always exists under rule 215.4(b) to deny a merits-preclusive request. Put differently, the question is not necessarily whether a litigation strategy is justifiable in hindsight but whether the merits-preclusive nature of the request for admission renders a denial non-sanctionable.
(citations and quotations omitted).
Relatedly, it seems clear that deemed admissions arising from untimely served RFA responses cannot be used to preclude a defendant from contesting the validity of the plaintiff’s claims or force him to concede his defenses, because that would offend due process (which generally affords a party the opportunity for a hearing on the merits of his cause.).