April 14, 2006
Update to SLM No. 1: Rule 36, Requests for Admission - More Than A Discovery Tool
Re: SLM No. 1, Rule 36, Requests for Admission, David Fischer, over at Antitrust Review and in Porter Wright's DC office, pointed out something useful--especially for firms (like his, mine) which are active in Michigan, Ohio, Kentucky and Tennessee:
There is another reason to love requests for admission: in some, but not all, federal circuits, requests for admission are not considered tools of discovery. As a result, in courts in those circuits, you can serve requests for admission after the close of fact discovery. See, for example, Misco, Inc. v. United States Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986). See also 8A Charles Alan Wright et al., Federal Practice and Procedure ยง 2253 (2d ed. 1994) (Rule 36, strictly speaking, may not set forth a discovery procedure at all because a party does not seek to discover a fact or opinion through a request for admission. Instead, a request seeks to have a party concede the genuineness of a fact or opinion that the requesting party believes to be settled.).
Posted by JD Hull at 10:24 PM | Comments (0) | TrackBack
April 12, 2006
Sensitive Litigation Moment-No. 1: "Lonely" Rule 36, Fed. R. Civ. P.
From the standpoint of both the client and its trial lawyer, Rule 36 of the Federal Rules of Civil Procedure, "Requests for Admission", can get things moving in the pretrial discovery process. And to an adversary who isn't familiar with Rule 36 or goes to sleep, it can be a real jolt because of the potentially severe consequences of failing to respond within 30 days. In a nutshell, Rule 36 permits you to serve on another party a request to admit the "truth of any matters" or "genuineness of any documents" described in the request. On factual matters, since Rule 36 is limited only by the liberal precepts of Rule 26, you can ask the other side to admit a wide range of "matters": (1) key but uncontested facts and (2) damaging facts. Failure to answer (i.e., "Admitted" or "Denied") or competently object to the request within 30 days results in the matter being deemed admitted and "conclusively established".
Talk about a wake up call for the other side. In some federal district courts you can immediately file the admissions with the clerk. However, ironically, historically Rule 36 has been used by trial lawyers way less often than other written discovery tools, like interrogatories (Rule 33) and requests for production of documents (Rule 34). Nothing bad happens if you don't meet the 30-day deadlines for these rules--just goofy "lawyer-centric" phone calls, requests for extensions, angry letters, and motions to compel under Rule 37. All of which is usually unproductive and makes even sophisticated corporate clients nuts. But opponents ignore Rule 36 at their peril. Rule 36 is also useful to authenticate documents. Finally, and importantly, you can also combine the requests with related interrogatories and document requests to ensure that the discovery process keeps moving.
Coming soon: Sensitive Litigation Moment-No. 2: The "Miracle" of Rule 56(f), Fed. R. Civ. P.
Posted by JD Hull at 09:03 AM | Comments (1) | TrackBack