Dallas Bar Association

Recovering For Opposing Counsel’s Failure To Admit

by Jared Slade and Scott Mascianica

It happened again. The other side just responded to a request for admission by denying a fact you know is true. Now you have to invest the time and expense to prove the fact. Both Federal Rule of Civil Procedure 37(c)(2) and its Texas counterpart, Texas Rules of Civil Procedure 215.4(b), allow a party to recover the reasonable expenses incurred in proving the denied fact to be true. This article discusses steps you can take to increase the likelihood of recovering reasonable expenses, including attorneys’ fees, for proving the matter true in either federal or state court.

The Rules

Both rules allow a party to apply to the court for an order for reimbursement of reasonable expenses, including attorneys’ fees, if (a) a party fails to admit any document is genuine or that any matter is true as required by F.R.C.P. 36 or T.R.C.P 198, and (b) the party seeking reimbursement proves the genuineness or truth. Truth or genuineness can be proved by later admission, testimony, or stipulation.

Under either rule, and even if truth or genuineness is proven, the court will refuse to grant the order if:

(1) the request was held objectionable;

(2) the admission sought was of no substantial importance;

(3) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or

(4) there was other good reason for the failure to admit.

F.R.C.P. 37(c)(2); T.R.C.P 215.4(b).

Although both rules state that granting the expenses is mandatory, the Southern District of Texas has relied on “its discretion” to deny the expenses request because “[t]he defenses asserted . . . [were] not in bad faith.” Pantank Corp. v. M/V M.E. Nunez, 35 F. Supp. 2d521, 530 (S.D. Tex. 1999).

Steps to Improve Likelihood of Recovering

The key to recovering fees under both rules starts in pre-trial planning. Awareness of the facts and documents needed to prove your case should drive your discovery plan and ensure focus on matters of “substantial importance.”

In drafting the requests, following a “funnel approach” may increase your likelihood of either forcing an admission or pinning your opponent in a corner. Given that there is generally no limit on the number of requests a party may serve, it is often advantageous to start with broad requests. While an admission would bolster your case, the more likely result is a denial that can provide a basis for more specific follow-up requests. Targeted follow-up requests will either force your opponent to admit the fact or leave them susceptible to F.R.C.P. 37(c)(2) or T.R.C.P. 215.4. However, an initial request that is too broad, i.e., “admit the defendant is liable for all damages,” provides the other party with a reasonable ground to believe it might prevail on the matter. Additionally, if a request requires a party to go beyond a “reasonable inquiry,” the court likely will find that responding party had “other good reason for the failure to admit.”

After a denial, identify how to prove that fact. Subsequent requests for admission are a good starting point, as are requests for the production of useful materials and documents. Depositions also allow testimony from witnesses that prove your fact. For this reason, it is advisable to review the denied requests before the deposition. If your proof hews to your request, you may avoid a squabble about whether your subsequent proof is on point.

Finally, make a timely motion to recover reasonable expenses. The appropriate time is different under the Federal Rules than it is under the interpretation of the state rules. While recovering under the Federal Rules is exclusively a post-trial activity, Texas state court interpretations indicate that attorneys may inadvertently waive a sanctions claim by not objecting prior to trial about the opposing party’s discovery conduct. See, e.g.,Meyer v. Cathey, 167 S.W.3d 327 (Tex. 2005). In Meyer, the court found that that pretrial deposition testimony barred post-trial sanctions because the defendant was “aware” of the misconduct prior to trial, even though the defendant lacked “conclusive evidence” until trial. Accordingly, an attorney in Texas state court should consider when she becomes “aware” that a request was wrongfully denied to avoid waiving an opportunity to recover her expenses in proving the matter.

Jared Slade is an associate with the Dallas office of Alston + Bird L.L.P., where he practices commercial litigation. He’s a member of the DBA Publications Committee. Scott Mascianica is an associate at Jones Day, where he is a member of the trial practice group. They can be reached at jared.slade@alston.com and smascianica@jonesday.com, respectively.

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