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Admit it — requests for admission evoke a bit of terror. Your opponent is setting you up for disaster. Admit and your opponent will use your admissions to get summary judgment or make her life easier and yours uncomfortable at trial. Deny inadequately and you may find yourself to have made admissions anyway. Deny improvidently and you may have to pay the other side for proving the facts. Nothing good can come from this. OK, for those of you who have not read Rule 36 recently, let’s review. A party may serve requests for the admission of facts, opinions of fact or the application of law to fact, including the genuineness of documents. The responding party has 30 days to (1) admit the request; (2) deny the request, subject to the sanction provisions of Rule 37(c); or (3) set out sufficient reasons why the request cannot be unequivocally admitted or denied. Simple. Simply awful. If you admit, you have given your opponent what she wants. Ugh. If you deny, you run the risk of sanctions; absent good reason for a failure to admit, Rule 37 mandates — not allows, mandates — payment of reasonable expenses including attorney fees. Ick. And if you object, you still have the possibility of sanctions, and if the court determines that an objection does not comply with the requirements of the rule, it may order that an amended answer be served — or that the matter is admitted. Yuck. DO NOT FEAR THE BEAST. IN FACT, EMBRACE IT Really? Maybe not. Maybe you should not fear the beast but embrace it. If your opponent asks you to admit a fact that she is able to prove, there is no less painful way to make that admission than via Rule 36. And you may actually be able to turn the exercise to your advantage. Our fear and loathing of Rule 36 is the result, in part, of false advertising. The rule is billed as a discovery rule — but it is not. “Rule 36 is not a discovery device. The purpose of the rule is to reduce the costs of litigation by eliminating the necessity of proving facts that are not in substantial dispute, to narrow the scope of disputed issues, and to facilitate the presentation of cases.” T. Rowe Price Small-Cap Fund v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997). And though it is entitled as a request for “admissions,” that really isn’t correct either. “In form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party.” Fed. R. Civ. P. 36, 1970 Committee Comments. The distinction is important. Vitally important. Because Rule 36 specifically limits the use of admissions pursuant to the rule to the particular case: “Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.” So there is no side effect from taking your medicine when you have to make an admission. Let’s pose a slightly bizarre hypothetical to make the point. Your client, BlackAs Inc., didn’t mean to, of course, but it inadvertently dumped a few trillion gallons of toxic waste into the river. Lee Galaction, the first downstream farmer, has already sued. There are another hundred farmers a piece down the river who are talking to lawyers. Oh, and the U.S. Attorney has convened a grand jury. Galaction alleges that BlackAs discharged toxic waste into the river and that the waste was the proximate cause of Galaction losing 600 acres of soybeans worth $100,000 per acre. BlackAs wants to settle with Galaction because it has no defense on the merits. But Galaction is being greedy — his beans are worth something more like $10,000 an acre rather than $100,000, and that extra zero makes a half-billion dollar difference that is hard to get past. So BlackAs has to defend. Now, if it were to admit the discharge allegations when it files its answer, that is a judicial admission in the pending suit — that will be binding and probably lead to immediate judgment on liability — but worse, it is an evidentiary admission that can be used in the future by the other hundred farmers and by the government. Kohler v. Leslie Hindman Inc., 80 F.3d 1181, 1185 (7th Cir. 1996). So, duh, your only option is to deny the allegation when you answer the complaint. (We told you this was a bizarre example; we aren’t going to try to guess how you will wrestle to submission your Rule 11 concerns, but we presume that you, Art Fuldodger, can find a way to fudge the answer.) This, of course, merely delays your pain. You can live until trial or summary judgment, but there will come the day when Galaction proves his allegation over your denial. And when he does, that finding will operate to collaterally estop BlackAs from denying liability in any future civil action. Bummer. But Galaction can’t wait. He has filed under Rule 36, repeating the same allegations in the complaint that you could not, must not, admit. What now? Your denial in the answer might have some amorphous Rule 11 repercussion, but Katie bar the door on the sanction you will face now if you deny the Rule 36 requests. Should you deny, Galaction will have to hire chemists and geologists and biologists as experts; he will have to depose a zillion of your employees; he will have to obtain, review and proffer into evidence a few terabytes of documentary materials. It will cost a fortune, and he will present the bill to BlackAs, not to mention (well we do mention) hitting you with a king’s ransom in attorney fees. Ah, but here’s the beauty. You don’t have to deny. Galaction has done you a favor. You can admit. You can proceed to trial on damages without worrying about the other cases. Because your admission can’t be used by the government nor by the other potential plaintiffs. That’s because an admission under Rule 36 isn’t an admission at all in the evidentiary sense; it is simply a stipulation that proof of the particular fact has been rendered moot by stipulation. Because an admission under Rule 36 is for the purpose of the pending action only, it cannot be used as an admission in any other proceeding. “Consequently, admissions made in accordance with Rule 36 have no collateral estoppel effect.” 7-36 Moore’s Federal Practice-Civil � 36.03. So go ahead and admit. No worries about collateral damage. And, while requests to admit might be a good thing, we can envision situations in which they might go from merely good to great. Let’s assume that Galaction’s specific request to admit is worded: “Admit or deny that BlackAs dumped 100 gallons of the toxic chemical reallybadforcropomine into the Big Muddy River immediately upstream from the Galaction Farm.” You know that the experts will tell the jury that it takes 100 gallons of that chemical to destroy one acre of soybeans. So you jump on that request. You are happy to stipulate that the amount of waste released was only 100 gallons. Can you bind the propounding party to the stipulation it requests? We’re not sure; but it’s a distinct possibility. Professor Moore thinks not: “the party requesting an admission is not necessarily bound by the admission, and even if the requesting party offers the admission in evidence, the requesting party is also free to produce contradictory evidence.” 7-36 Moore’s Federal Practice-Civil � 36.03. But Moore’s cites only two not-so-recent cases in support of that proposition, one of which relies entirely on Moore’s itself, the other of which doesn’t exactly stand for the proposition. Champlin v. Oklahoma Furniture Mfg. Co., 324 F.2d 74, 76 (10th Cir. 1963) (citing Moore’s); Brook Village North Assocs. v. General Elec. Co., 686 F.2d 66, 75 (1st Cir. 1982) (cited by Moore’s but really holding that party may offer additional evidence that supplements rather than contradicts the admission). Do your own research. But why shouldn’t a party who compels her opponent to make a stipulation be equally bound by the stipulation? If the complaint had alleged that only 100 gallons were dumped, that would be a judicial admission and binding on Galaction; why shouldn’t he be bound — at least for the pending case — by his own requests for admission? Galaction probably isn’t dumb enough to make such a stupid request; he saves himself simply by making a better request, such as “admit that BlackAs dumped 100 gallons or more.” Then your admission simply means that you have admitted dumping; evidence of the precise amount is supplementary, not inconsistent. (That’s the actual holding in Brook Village North Assocs.) CONSIDERING A MORE MAINSTREAM SCENARIO But consider a more mainstream scenario. Galaction asks you to admit all of the salient facts that establish liability. You admit. At trial, he shows up with eight boxes of pictures of his withered crops. But you have stipulated to this. The whole point is to obviate the need to offer proof, so why should Galaction be permitted to offer the proof anyway? Well, the cases suggest that the court has discretion to allow the proof; but it is discretion, not a right. See Briggs v. Dalkon Shield Claimants Trust, 174 F.R.D. 369 (D. Md. 1997). You have a fair shot of convincing the court to rein in the evidence. Don’t get us wrong. Requests for admission remain offensive weapons for the proponent, and potent weapons at that. But think legal ju jitsu — turn the power of your opponent’s thrust back to defeat him. Jerold S. Solovy and Robert L. Byman are Fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy can be reached at [email protected]. Byman can be reached at [email protected].

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