Requests for Admission

Robert B. Corris Mark M . Leitner

.
.

[ 5.11

Scope of Chapter

............................

11

In General ................................. 3 A. [5.3] Nature and Purpose of Requests for Admissions .............................. 3 1. [ 5.41 In General ............................ 3 2 . [ 5.51 Narrowing Issues for Trial ............... 6 3. [ 5.61 Establishing Undisputed Facts for Purposes of Summary Judgment ........... 6 4 . [ 5.71 Expediting Admission of Trial Exhibits .... 10 B . [ 5.81 . Scope of Requests for Admissions ........... 11 C. [5.9] Effect of Admissions and Denials ........... 14 1. [5.10] Admissions .......................... 14 2 . [ 5.111 Denials ............................. 17
[ 5.21
[ 5.121 Serving Requests for Admissions .............. A. [ 5.131 When Requests May Be Served ............. B . [ 5.141 On Whom Requests May Be Served ......... C. [ 5.151 Number of Requests Permitted ..............

I11

D. [5.16] Format of Requests

.......................

17 17 19 20 21 23 23 25 25 25 27

IV

A. [ 5.181 B . [$5.19] Format of Response ...................... 1. [ 5.201 In General ........................... 2 . [5.21] Objections ........................... 3. [ 5.221 Denials ............................. 4 . [ 5.231 Statements Alleging Inability to Admit orDeny ............................. 30

[ 5.171 Answering Requests for Admissions

........... Time Limit and Effect of Failure to Answer . . .

C. [ 5.241 Withdrawal or Amendment of Admissions

.....

31

V.

[# 5.251 Judicial Supervision and Enforcement

[ 5.261 Forms

.........

37

VI.

.................................... 43

Appendices ............................................. 44 5A Sample Requests for Admissions .................... 44 5B Sample Response to Requests for Admissions .......... 49 5C Sample Interrogatories ............................. 55

I. [ 5.11 Scope of Chapter

Section 804.11 of the Wisconsin statutes' governs the discovery procedure known as requests for admissions. This chapter reviews the nature and purpose of requests for admissions, compares requests for admissions to other discovery procedures, and discusses the procedural requirements governing the use of requests for admissions. The chapter also includes a set of sample requests for admissions, a sample response to requests for admissions, and a set of sample follow-up interrogatories. Section 804.1 1 is based on Federal Rule of Civil Procedure 36. Although this chapter deals with Wisconsin law, the relative dearth of reported Wisconsin cases concerning section 804.1 1 requires frequent reference to federal case law. Thus, as a general rule, lawyers seeking guidance on specific issues relating to requests for admissions should consult federal cases interpreting Federal Rule of Civil Procedure 36. The Wisconsin Supreme Court has implicitly approved the use of federal case law by relying on federal decisions in cases that have construed section 804. 11.2 In addition, the Wisconsin

> Practice Tip.

Unless otherwise indicated, all references in this chapter to the Wisconsin Statutes are to the 2003-04 Wisconsin Statutes, as affected by acts through 2005 Wisconsin Act 60. Textual references to the Wisconsin Statutes are hereinafter indicated as "chapter xxx" or "section xxx.xx," without the designation "of the Wisconsin Statutes." . -

See, e.g., Bank o f Two Rivers v. Zimmer, 112 Wis. 2d 624, 630-31, 334 N.W.2d 230 (1983). In Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 7 29,252 Wis. 2d 426,643 N.W.2d 98, the court noted that section 804.1l(2)
Vh. 4 PO. 2
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Court of Appeals has expressly recognized the "instructive" value of federal precedent construing Federal Rule of Civil Procedure 37 as applied to cost-of-proof sanctions when the matters denied were thereafter proved at trial.3 Federal decisions construing the procedural counterparts to the Wisconsin Rules of Civil Procedure are persuasive, but are not ~ontrolling.~

11. [ 5.21 In General

A.

[s 5.31 Nature and Purpose of Requests for

Admissions
1 . [ 5.41 In General

The function of requests for admissions is to define and limit the controversy between parties to a lawsuit, thus freeing the court and the parties to concentrate on the matters at the heart of the d i ~ p u t e . Requests ~ for admissions do this in two ways. First, admissions may facilitate proof on issues that cannot be eliminated from the case. For example, although the parties may not agree on the meaning of a particular document, one party can use requests for admissions to establish the foundation required for the document to be admitted into evidence. Second, admissions may narrow the issues by conclusively establishing facts required to prove some element of the case, thereby eliminating that element from the trial. The Wisconsin Supreme Court's holdings in Bank o f Two Rivers v. Zimmefl and Schmid Y. Olsen7 establish that admissions under section 804.11 may dispose of the entire case. was adopted from, and is nearly identical to, its counterpart provision in Federal Rule of Civil Procedure 36(b) and that, accordingly, the court could look to federal law for guidance in its analysis of "prejudice" under section 804.1l(2). Michael A.P. v. Solsrud, 178 Wis. 2d 137, 148,502 N.W.2d 918 (Ct. App. 1993). Wilson v. ContinentalIns. Cos., 87 Wis. 2d 310,316,274N.W.2d 679 (1979). Walter L. Harvey, Rules o f Civil Procedure, at 394 (Wisconsin Practice Vol. 3) (1975).

Several commentators believe that these functions are not truly within the scope of discovery and that requests for admissions are therefore not "true" discovery procedure^.^ The rationale for this position is that the party seeking the admission already knows the facts or has the documents and merely seeks an admission that will establish the facts or authenticate the document^.^ The authors of this chapter, however, believe that the distinction between requests for admissions and other true discovery procedures rests on too narrow a conception of the discovery process. Although most courts continue to distinguish between true discovery procedures and requests for admission, the distinction has almost no practical importance for practicing lawyers. The belief that requests for admissions are not properly part of discovery has led one federal court to hold that the deadline for service of requests for admissions is not governed by the general discovery cutoff in a scheduling order." A substantial number of other courts, however, have treated requests for admissions as being subject to discovery cutoff dates." The Eastern District of Wisconsin specifically requires that requests for admissions be scheduled to allow answers prior to the deadline.'' Aside from this issue, it should not matter whether requests for admission are part of discovery or not.

Practice T i p . It would be imprudent for Wisconsin attorneys to

delay serving requests for admissions in reliance on Hurt. Attorneys should anticipate that most judges probably intend that their scheduling orders cover requests to admit, and that judges would likely view a Hurt argument as an attempt by the attorney to avoid the consequences of having missed a court-ordered deadline. Discovery serves two functions in the litigationprocess. First, it enables a party to obtain information unknown to that party. This is the literal meaning of discovery, and is likely the one stressed by the commentators and courts who believe that requests for admissions are not true discovery procedures.

See, e.g., 8A Charles A. Wright et al., Federal Practice and Procedure: Civil 2d, at 524 (1994 & Supp. 2005) [hereinafter Wright et al.]. Id.; see also Schmid, 111 Wis. 2d at 240 n. 1 (Steinmetz, J., dissenting).
'O

Hurt v. Coyne Cylinder Co., 124 F.R.D. 614,615 (W.D. Tenn. 1989). See Gluck v. Ansett Australia, Ltd., 204 F.R.D. 217,219 (D.D.C. 2001).

l1
l2

E.D. Wis. Civ. L.R. 26.2.

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Second, discovery enables a party to pin its opponent to a certain position. For example, litigators frequently take depositions not merely to learn the opponent's narrative version of the underlying facts, but to bind the opponent to a position that cannot be contradicted at trial without a loss of credibility. Requests for admissions are ideally suited to this purpose because section 804.1 l(2) mandates that an admission in response to a request conclusively establishes the fact admitted unless the court permits withdrawal of the admission at a later date.13 When a request is admitted, no contrary evidence regarding the matter admitted should be allowed into evidence. A request for admission, once admitted, is a judicial admission and "[a] judicial admission trumps e~idence."'~ A party can change an answer to an interrogatory or alter an account of the facts testified to at a deposition, but the party cannot so easily evade an admission made under section 804.11. Alternatively, a party may be intentionally vague or ambiguous in answering written interrogatories or deposition questions. Because a properly drawn request for admission focuses on one matter and requires either an admission or a denial of the truth of the matter, the option of evasiveness is largely foreclosed. In this sense, requests for admissions are an essential part of the strategic use of discovery. The various uses of requests for admissions can be seen by analyzing the litigation process. As a lawsuit progresses from the filing of a complaint to trial, the lawyers for all parties are developing their litigation strategies.I5

Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500,511,434 N.W.2d 97 (Ct. App. 1988); see also Mucek, 2002 WI App 60, 7 31, 252 Wis. 2d 426 ("The purpose of the admissions process 'is to expedite trial by establishing certain material facts as true . . . thus narrowing the range of issues for trial."' (quoting Asea, Znc. v. Southern Pac. Tramp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981))).
l3

Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir. 1996); see also Keller v. United ,States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (quoting Michael H. Graham, Federal Practice and Procedure 6726 (interim ed.) (stating that rule 36 admissions "have the effect of withdrawing a fact from contention")).
l4

Sections 5.5 to 5.7, infra, illustrate the strategic uses of requests for admissions in the litigation process.
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2. [ 5.51 Narrowing Issues for Trial

Parties may include in their complaint or answer any remotely plausible grounds on which they might prevail, subject to the restraints imposed by section 802.05. This is particularly true for the affirmative defenses enumerated in section 802.02(3), which are waived if not pleaded in an answer. The opposing party can often eliminate such claims or defenses by using requests for admissions.

> Practice Tip. Some attorneys who believe that certain allegations
in a complaint or certain affirmative defenses in an answer are without merit follow the practice of propounding contention interrogatories designed to elicit all facts that support these allegations or affirmative defenses.I6 What the attorney hopes to accomplish is to lay the groundwork to strike the allegation or defense. But by using an interrogatory, the attorney may be reducing the number of interrogatories available under a local rule.17 The attorney should consider using requests for admissions instead. Such "no liability" requests for admissions, if denied, can then be followed up with interrogatories requiring the opposing party to state all the facts supporting the denials.

3. [ 5.61 Establishing Undisputed Facts for

Purposes of Summary Judgment

Section 802.08 provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment should therefore review the pleadings, depositions, answers to interrogatories, and affidavits to determine what facts, if any, need to be established by the opposing party's admissions in order to satisfy the requirement that there be no genuine issue as to any material facts. When a party is moving for a summary judgment, requests for admissions can be more effective than other discovery procedures. The opponent's lawyer drafts answers to interrogatories and often will successfully See supra 5 4.20 (contention interrogatories).
See supra 5 4.6 (local rules limiting number of interrogatories).
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draft a response that frustrates the purpose for which the interrogatory was submitted. Any lawyer who has taken a deposition can recite chapter and verse on the difficulties inherent in getting a witness to "just answer the question." And even when recent events are at issue, the party deponent's memory may fade during a deposition, as is demonstrated by the common answer, "I can't recall at this time." If they are clearly and concisely drafted, requests for admissions do not face these obstacles. Unlike answers to interrogatories, the range of permissible responses to a request for admission is limited. Section 804.1 1(I)@) provides that the respondent may admit the matter requested or may "specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter."18 The answering party cannot use the deponent's familiar ploy of fading memory. The provision quoted above requires the answering party to provide details supporting its claimed inability to recall the facts.19 Moreover, section 804.1 l(l)@) mandates that "[aln answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he or she had made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny." At least one federal court has interpreted identical language in Federal Rule of Civil Procedure 36 to require the answering party to specijj the reasonable inquiry undertaken."

Practice Tip. If the attorney decides that the opposing party has
. improperly failed to admit or deny by not undertaking the requisite inquiry, the attorney should file a motion to have the matter deemed admitted. Some attorneys may develop the habit of routinely serving an interrogatory that states, in substance, "For each request for admission for which you claim lack of information, identify each step taken and each person you contacted in attempting to answer the request."
See infra gg5.19-.23 (format of response). Princess Pat, Ltd. v. National Carloading C o p . , 223 F.2d 916,920 (7th Cir.

l8
l9

1955).

v. Food &Nutrition Serv., 580 F. Supp. 1564,1566 (D.N.J. 1984); see also Hay & Forage Indus. v. Ford New Holland, Inc., 132 F.R.D. 687, 694 (D. Kan. 1990) ("Rule 36 requires a detailed explanation for the inability of the respondent to admit or deny a request."); Audiotext Commc'nsNetwork, Inc. v. US. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625744 (D. Kan. Oct. 5, 1995) (unpublished).
20 Hun
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However, an attorney might want to consider not submitting such an interrogatory, and simply moving to have the matter deemed admitted if the opposing party fails to specify what reasonable inquiry was undertaken. Requests for admissions are also particularly useful in the summary judgment procedure because the Wisconsin Supreme Court has held that requests for admissions may concern a broad range of "facts." The Judicial Council Committee's Note, 1974, explains that the current statute, Wis. Stat. 8 804.11, unlike the former section 889.22, provides that "the request need not be limited to 'fact or facts,' but may seek, when appropriate, opinions of facts or the application of law to fact." . . . . The rule does not prohibit requests concerning "ultimate facts," nor does it matter that a plaintiff bears the burden of proof on the issues that he requests the defendants to admit . . . . It is also irrelevant that a request seeks an admission which would be dispositive of the entire case." It is sufficient to note here that a request for admission will not be deemed improper just because a request deals with the application of law to fact or an "ultimate fact" that disposes of an issue or even an entire lawsuk2' However, the use of requests for admission may become a trap for the unwary in summary judgment motions that involve multiple-party litigation, such as third-party claims. A federal appellate court has addressed the interplay between applying claims for contingent liability (such as third-party claims, which are premised on the third-party plaintiff's being held liable to the principal plaintiff) and the rules governing requests ~ for admission. In Langer v. Monarch Life Insurance C O . ,a~principal defendant argued that admissions it had made under Federal Rule of Civil Procedure 36 in response to a third-party defendant's requests for admission would not "ripen" until the principal defendant had been found liable to the principal plaintiff. The principal defendant reasoned that to hold otherwise "would allow every third-party defendant to force a defendant with a liability-over claim to admit defeat against either the plaintiff or the third-party defendant."24

Schmid,111Wis. 2d at 236; see infra $5.8 (permissibletopics ofrequests for

admissions).
-

22

Micro-Managers, 147 Wis. 2d at 510.

23

966 F.2d 786 (3d Cir. 1992).

" 966 F.2d at 803.

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The Third Circuit disagreed, holding that the primary defendant had created a nonexistent dilemma. If the third-party defendant's request were phrased broadly, e.g., as a request that the principal defendant admit flatly that it "was not liable" to the plaintiff (thus destroying the basis for the principal defendant's liability-over claim), the "proper answer to that request would be to object that the statement could not be admitted or denied, because the fact of actual liability would still be undetermined. . . . [A principal defendant can] admit only that it believed and had taken the legal position that it was not liable to [the principal plaintiff] (a legal position that it might win or lose at The Third Circuit correctly pointed out that such a limited admission would not expose the third-party plaintiff to a third-party defendant's motion for summary judgment.26 On the other hand, the court pointed out, the mere fact that a third-party plaintiffs claim is contingent on its own liability to the principal plaintiff should not shield the third-party plaintiff from the effects of its admissions concerning purely factual matters relevant to the third-party defendant's defenses to the liability-over claim. In this context, a third-party defendant may legitimately base its motion for summary judgment on an admission, because "[tlhird-party defendants do not have to wait for the plaintiff to succeed against the original defendant before filing motions for summary judgment .''27 The Langer decision emphasizes that counsel for parties that have asserted liability-over claims must carefully analyze requests for admission directed at the hypothetical nature of liability-over claims, in order to ensure that in their zeal to defeat the primary plaintiff's claim, they do not make admissions that are flatly inconsistent with their own theories of liability on their liability-over claims. Langer provides a useful road map for answering' such requests.

25

Id.

26

Id.
Id. at 804.

4. [ 5 . 7 1 Expediting Admission of Trial Exhibits

Requests for admissions may expedite the trial process by establishing evidentiary foundations that would consume considerable trial time. For example, when a party seeks to introduce business records under the hearsay exception of section 908.03(6), the party would normally be required to call a foundation witness who could testify that the record was made at or about the time of the events reflected, that it was found where such records are normally kept, that the record was kept in the ordinary course of business, and that it was the organization's regular practice to make and keep records like the exhibit sought to be introduced. The proper foundation for many documents can be established well in advance of trial by asking in requests for admissions the questions used to establish evidentiary f o ~ n d a t i o n s . This ~ ~ strategy is particularly useful when a large volume of documents is to be introduced at trial. The courts' desire to expedite the trial process likely will lead them to approve requests for admission concerning evidentiary foundations for large document cases over objections that the requests are "overwhelming" or "unduly burdenNotably, this process may be used even when the documents sought to be admitted belong to an entity other than the party answering the request. Here, the answering party's duty to make reasonable inquiry is crucial. As long as the necessary foundational facts are available to the answering party, the fact that the documents or exhibits are not from the party's own files will not necessarily permit the answering party to claim lack of knowledge. It is not enough to ask an opposing party to admit that a document is genuine if the attorney's purpose in propounding the request for admission is to eliminate the need for presenting foundation testimony. The attorney must make sure that the proper foundation questions are included in the request. If the answering party denies the requests, the entity with custody of the documents may have to be deposed. If so, the party asking for the admissions regarding foundationtestimony should be able to recover the

> Practice Tip.

- -

See Ropfogel v. United States, 138 F.R.D. 579, 584 (D. Kan. 1991)

(discussing usefulness of requests for admission in laying foundation for documents).

29 Berry

v. Federated Mut. Ins. Co., 110 F.R.D. 44 1,442-43 (N.D. Ind. 1986).

costs and fees incurred in taking the deposition that was necessitated by the answering party's denial.

Practice Tip. The typical scheduling order provides for completion

of discovery, then sets a deadline for filing dispositive motions. Well before the completion of discovery, the attorney should be planning a strategy to narrow the issues, move for summary judgment, and satisfy evidentiary needs at trial. If the attorney does not determine well before the discovery cutoff what evidence must be offered at trial and how that evidence will be admitted, it will be too late to use requests for admissions, or other discovery, to lay the necessary foundations or to obtain substantive evidence essential for proof of a claim or defense.

Practice Tip. A party who wishes to offer one or more admissions

at trial should mark and introduce the admission(s) as an exhibit. Depending on the nature of the admission, the party obtaining the exhibit may want to have the opposing party read the admission as an adverse witness. In all cases the party using the admission should provide the court with an instruction that the matter admitted has been conclusively proven and cannot be contradicted. Depending on the nature of the admission, the party offering the admission might ask the court for an instruction at the time of the offer. Because admissions established under section 804.1 1are conclusive and cannot be contradicted, the party who has obtained the admission should strongly consider filing a motion in limine to exclude any potential offer of evidence in contradiction of the admission. Any attempt by the opposing party to offer such evidence should be met with an immediate objection.

B. [ 5.81 Scope of Requests for Admissions

As a discovery device, requests for admissions are subject to the general provisions governing discovery set forth in section 804.01. Thus, the scope of requests for admissions are governed by section 804.01(2), which permits discovery on "any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it is to the claim defense of party seeking his county or to the claim of defense of any party."30

30 See

Schmid, 111 Wis. 2d at 236.

Practice Tip. Attorneys should be aware that the scope of

discovery under Federal Rule of Civil Procedure 26(b)(l) is more limited, relating to any matter that is relevant to the claim or defense of any party. It is not a sufficient basis for objection that the matter on which an admission has been requested presents a genuine issue for trial.31 Nor may a party object because the request relates to opinions of fact or the application of law to fact.32 In Michael A. P. v. Sol~rud?~ the court refused to find requests containing terms of art ("general contractor" and "agent") ambiguous because the context in which the words were used in the case negated any ambiguity. However, requests involving the application of law to fact may sometimes be more appropriate after other discovery has been completed. Commentators have said that the final paragraph of Federal Rule of Civil Procedure 36(a) (analogous to section 804.1 l(1)) allows the court, if it chooses, to postpone final disposition of such requests until a pretrial conference or a designated time before trial. The use of a request for admission to establish conclusively an ultimate issue involving the application of law to fact has been tested both successfully and unsuccessfully in Wisconsin. In Schmid, the plaintiff asked the defendant to admit that the defendant was 70% causally negligent. The defendant failed to respond in a timely fashion, and the plaintiff proceeded to trial, assuming that the defendant's percentage of causal negligence had been conclusively established by the unanswered request. The trial court held that the request was not an appropriate demand, but the supreme court held that the request was proper: The trial judge relieved the defendants from the effect of the admissions, reasoning that the request to admit seventy percent negligence was not an appropriate demand because it ran to the complaint and because the defendants denied liability in their answer. This is not the law in Wiscon~in.~~ Nevertheless, the supreme court remanded so that the trial court could determine whether withdrawal of the admission would prejudice the plaintiff. Wis. Stat. $ 804.11(l)(b).
See Wis. Stat. 9 804.11(1)(a).

3'
32
33

178 Wis. 2d 137,149,502 N.W.2d 918 (Ct. App. 1993).

34

Schmid,111 Wis. 2d at 235-36.

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In Kettner v. Milwaukee Mutual Insurance Co.,35 the defendant served a request to admit that "the value of the plaintiff's claim for injuries in this case, taking into account his own contributory negligence does not exceed $100,000." The plaintiff admitted the request. Following the admission, the plaintiff's attorney submitted an offer to settle for $90,000. None of the defendants responded to the offer. The jury's award, after reduction for contributory negligence, was $158,956.03.
On appeal, the defendant argued that because Schmid v. O l ~ e and n~~ Bank of Two Rivers v. Zimme?7 held that section 804.11 permits requests for admissions of "ultimate facts," the request for admission could be used to establish the value of the plaintiff's claim. The court of appeals stated that Schmid and Bank of Two Rivers both involved "application of a legal concept to a set of facts, which are fixed in time and susceptible to v a l ~ a t i o n . "The ~ ~ value of a claim, the court said, is "inherently variable, being based on a series of factors that constantly change prior to and during the The court also reasoned that the request for admission in Kettner conflicted with the specific settlement offer provisions of section 807.01. The court concluded that "the total value of a personal injury claim is not a matter that a party can truthfully admit or deny under sec. 804.11."40 Although the scope of requests involving the application of law to fact is quite broad, requests that seek to elicit pure legal conclusions are impr~per.~' Nor is it proper to request that party admit that it will not present evidence of a certain nature because the purpose of requests for

35

146 Wis. 2d 636,638,431 N.W.2d 737 (Ct. App. 1988).

38

Kettner, 146 Wis. 2d at 643. Id. at 643-44.

39

Golden Valley Microwave Foods, Znc. v, Weaver Popcorn Co., 130 F.R.D. 92,96 (N.D. Ind. 1990);cJ: Intertech Res., Inc. v. Vital Signs, Inc., No. 94 C 5758, 1996WL 637860 (N.D. Ill. 1996) (holdingthat requests quoting language fiom the claims of patent in suit and asking for admissions that various elements in the prior act satisfied the quoted language held proper).
41

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P I . ~ ,m ~n ~n,

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admissions is to narrow issues for trial be establishing facts, not by predetermining trial strategy:'

C. [ 5.91 Effect of Admissions and Denials

1 . [ 5.101 Admissions
Perhaps the most significant fact about requests for admissions is that, with very few exceptions, a response that admits the matter requested conclusively puts that matter to rest.43 The limited situations in which a party may withdraw or be relieved from the effect of an admission made under section 804.11 are discussed in section 5 . 2 4 , infra. Here, it is sufficient to note that the Wisconsin Supreme Court has recognized that 0 4 . 11 "permits the party securing admissions to rely on their section 8 binding effect."44 This binding effect of an admission under section 804.11 sets requests for admissions apart from all other discovery procedures. A party's answers to interrogatories, deposition testimony, and statements made in documents are merely evidentiary admissions-statements admissible by 4 ) ( b ) . However, the virtue of their nonhearsay status under section 908.01( party who made them is free to explain them away or otherwise contradict them at trial. No such alternative protects the party who admits a matter under section 804.11. The conclusive nature of the admission should preclude any contrary evidence concerning that matter. As one federal court has held, evidence inconsistent with an admitted matter simply cannot be considered by the c0urt.4~ Moreover, "[aln admission that is not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the district court simply because it finds the evidence presented by the party against whom the admission operates more credible."46A response to a request for

42
43

Howell v. Maytag, Inc., 168 F.R.D. 502,504 (M.D. Pa. 1996).

Wis. Stat. $ 804.1l(2).

Shakman v. Democratic Org., 481 F. Supp. 1315,1346 n.35 (N.D. Ill. 1979).

45

American Auto. Ass'n v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991).
46

admissions is a judicial admission and, as stated in Murrey v. United state^:^ "a judicial admissiontrumps evidence." Indeed, a jury finding that is inconsistent with a matter established through requests for admissions will be disregarded, and the party will be bound by the facts established in the party's responses to the requests.48 In Traynor v. Thomas & Betts C o p ,4' when affirming the trial court's award of attorney fees, the appellate court relied on a response to a request for admission to find that Thomas & Betts had advanced a position that was not substantially justified. This does not mean, however, that a matter conclusively established under section 804.11 will necessarily be admitted into evidence. All general objections to the admissibility of evidence-that is, those that do not seek to contradict the admission-may be raised at the trial.'' For example, objections that a matter admitted is irrelevant or would deprive a party of the right to cross-examine a key witness would be proper at the trial, as would an objection that an admission is inadmissible hear~ay.~' Admissions that result from a party's failure to respond to requests for admission are also subject to all pertinent objections to admissibility that may be interposed at

Prmtice Tip. If a party misses the deadline for responding to a request for admission, the party's attorney should not wait for the other side to move for summary judgment. Instead, the attorney should

47

73 F.3d 1448, 1455 (7th Cir. 1996). Calhoun v. United States, 591 F.2d 1243, 1246 (9th Cir. 1978). 2003 WI App 38,260 Wis. 2d 345,659 N.W.2d 158. Al-Jundi v. Rockefeller, 91 F.R.D. 590,595 (W.D.N.Y. 1981).

48
49
50

Al-Jundi, 91 F.R.D. at 592 (discussing relevance); Goldman v. Mooney, 24 F.R.D. 279,280 (W.D. Pa. 1959) (discussing opportunity for cross-examination); Tholp Sales Coy. v. Dolese Bros., 453 F. Supp. 196, 202 (W.D. Okla. 1978) (discussing hearsay).
51
52

Walsh v. McCain Foods, Ltd., 81 F.3d 722,726 (7th Cir. 1996).

immediately move for additional time to respond and for permission to withdraw or amend the deemed a d m i s ~ i o n s . ~ ~ Moreover, the conclusivepresumption applies only if the court does not permit withdrawal of the admission. Section 804.1l(2) provides that a court may permit withdrawal of an admission when the presentation of the merits will be subserved by the withdrawal and the party who obtained the admission fails to satisfy the court that withdrawal will prejudice that party in maintaining the action on the merits.54 The court stated that "[a] trial court's general authority to maintain the orderly and prompt processing of cases provides authority to deny withdrawal, apart from the two factors in Wis. Stat. 9 804.11(2)." Use of admissions against the answering party is limited to the pending action in which the requests were p r ~ p o u n d e d . The ~ ~ statute precludes the use of an admission for any other purpose and specifies that an admission may not be used against the answering party in any other proceeding. However, any adverse party-not only the party requesting the admission -may rely on an opponent's a d m i s ~ i o n s . ~ ~

> Query. It remains an open question whether an admission made in

one proceeding and having conclusive effect in that proceeding under section 804.11 could be offered in another proceeding for impeachment purposes or as an evidentiary admission. For example, assume that a number of different lawsuits have been filed arising out of the same alleged wrongful conduct (e.g., airline crash, drug product liability, securities law violations). If plaintiff A serves a request that the defendant admits, and in a separate lawsuit plaintiff B serves the identical request that the defendant denies, may plaintiff B impeach the
'"ee McDowell v. Milwaukee Transp. Servs., No. 96-2370,1997 WL713993 (Wis. Ct. App. Nov. 18,1997) (unpublished opinionnot to be cited as precedent or

authority per section 809.23(3)) (citing with approval trial court's admonition of nonanswering party for failure to move immediately for relief).
See Bank of Two Rivers, 112 Wis. 2d at 633; infra 5.24. In Mucek, 2002 WI App 60, 7 35, 252 Wis. 2d 426, which is discussed in detail in section 5.24, infra, the court addressed the meaning of "prejudice," and emphasized the
54

discretionary nature of a trial court's decision to permit withdrawal of an admission if the two conditions are met.
55
56

Wis. Stat. 804.11(2). Wright et al., supra note 8, 2264.

O Fehnlarv 3.006.Stitte Rar of Wisconsin 111R Rooks

c h . 5 PP. 16

defendant by using the defendant's response to plaintiff A's request? Does the word "admission" in the last sentence of section 804.1 l(2) refer only to a conclusive admission? The authors have found no cases on point.

2. [ 5.111 Denials
Denying a request for admission simply leaves the matter upon which admission was requested in dispute for trial. Nothing in section 804.11 provides that denials have the same conclusive effect as admissions. The most important practical effect of a denial is that it opens the door to cost-of-proof sanctions under section 804.12(3). Section 804.12(3) permits a party who proves the genuineness of a document or the truth of a matter denied by the answering party under section 804.1 1 to apply for an order forcing the answering party to pay the requesting party "the reasonable expenses incurred in the making of that proof, including reasonable attorney fees."57 In Michael A.P. v. Solsr~d,5~ the court extensively discussed both the grounds for awarding cost-of-proof sanctions and the definition of what constitutes reasonable expenses incurred in the proof of the matters denied.59

111. [ 5.121 Sewing Requests for Admissions

A. [ 5.131 When Requests May Be Served
Section 804.11(l)(a) expressly permits requests for admissions to be served on the plaintiff any time after the action is commenced, and on any other party with or after service of the summons and complaint on that party. Although a plaintiff may serve requests for admissions with the summons and complaint, the defendant is not required to respond to any
-

57

Wis. Stat. 5 804.12(3). 178 Wis. 2d 137,502 N.W.2d 918 (Ct. App. 1993).
See Wentland v. American Fam. Mut. Ins. Co., No. 93-3310, 1995 WL

59

271772 (Wis. Ct. App. May 10, 1995) (unpublished opinion not to be cited as precedent or authority per section 809.23(3)) (upholding trial court's imposition of sanctions on defendant insurance company for unreasonable denial of insured's negligence); infra 5 5.22.

request for admission until 45 days after the summons and complaint have been served on that defendant.60The plaintiff, in contrast, is not protected by this 45-day period.61

Practice Tip. Section 802.02(1)(a) requires a complaint to contain a "short and plain statement of the claim." A complaint containing
detailed evidentiary allegations may be dismissed for violating.this rule.62 An attorney who is inclined to file a detailed complaint should consider instead serving requests for admissions with the summons and complaint. Such requests would seek admission of evidentiary facts and might request admission of the genuineness of exhibits attached to the requests. By serving such requests, an attorney can obtain detailed admissions without risking dismissal of the complaint. Section 804.11 does not expressly state the last date upon which requests for admissions may be served. Courts that follow the provisions of section 802.10 governing scheduling conferences, regularly provide in their scheduling orders a date by which all discovery must be completed. Most judges in their scheduling orders also require that discovery devices prescribing a specific period for response, such as interrogatories and requests for admissions, must be served by a date that will permit the answers to be served before the discovery cutoff date. A sample provision is as follows: "All requests for discovery must be served by a date sufficiently early so that all nonexpert discovery in this case can be completed no later than December 15,2005." Local rules may also impose deadlines. Parties should submit requests for admissions well in advance of any discovery deadline. Note, however, that some courts exempt requests for admission from the discovery cutoff in a scheduling order on the grounds that requests for admission are not true discovery devices.63

60 Wis.

Stat. 3 804.1l(l)(b).

61 See infra
62

3 5.18.

See Windsor v. A Fed. Executive Agency;614 F. Supp. 1255 (M.D. Tenn. 1983), affd, 767 F.2d 923 (6th Cir. 1985); c f Fed. R. Civ. P. 8. See, e.g., Hurt, 124 F.R.D. at 615. But see Gluck v. Ansett Austrailia, Ltd., 204F.R.D. 217 (D.D.C. 2001); E.D. Wis. Civ. L.R. 26.2.
63

B. [ 5 . 1 4 1 On Whom Requests May Be Served

Section 804.1 l(l)(a) specifically provides that requests for admissions may be served on "any other party." The statute makes no provision for obtaining admissions from nonparties. In this respect, requests for admissions are like interrogatories, which may be served only on parties, and unlike depositions, which may be used to elicit information from anyone possessing it. The restriction that requests for admissions may be directed only to parties does not mean, however, that a request for admission cannot pertain to matters known by a nonparty. Section 804.1 l(l)(b) specifically imposes upon the answering party the duty to make a reasonable inquiry into information "known or readily obtainable" to that party that pertains to the subject matter of the request. Under proper circumstances,this includes the obligation to seek information from third parties.64However, such "proper circumstances" may be relatively rare. For example, in Diederich v. Department of the court held that "reasonable inquiry," in the context of an organization, means investigation and questioning of any of the respondent's officers, employees, and other personnel who might have information that may lead to or constitute a proper response. However, the duty of reasonable inquiry did not obligate the respondent to interview ~~ nonparties or former officers, employees, and other p e r ~ o n n e l . Both ~ that absent sworn Diederich and Dubin v. E.F'. Hutton Group, I ~ c . :held deposition testimony available to the responding party, a party responding to requests for admissions has no obligation to seek information from a nonparty. This principle is likely to be most important in cases in which the information necessary for a proper response is known only by a person no longer employed by the respondent organization.

64

Al-Jundi, 91 F.R.D. at 593.

132 P.R.D. 614,619 (S.D.N.Y. 1990).

66
67

Id. at 620.
125 F.R.D. 372,374-75 (S.D.N.Y. 1989).

0 Fehmsrv 7nnh State Rar nf Wisconsin I]T.E Rnnks

C. I 5.151 Number of Requests Permitted

Section 804.11 does not limit the number of requests for admissions that may be served. Similarly, section 804.08 contains no express limitation on the number of interrogatories that may be served. Nevertheless, many courts have adopted local rules restricting the use of discovery procedures as a guard against abusive "paper wars." For example, the Eastern District of Wisconsin limits parties to 25 interrogatories unless prior court approval is obtained, although some kinds of interrogatories do not count toward the 25-interrogatory limit.68

> Practice Tip. Counsel should determine whether local rules limit
the number of requests for admissions. If not, counsel faced with a limit on the number of interrogatories may be able to employ requests for admissions instead of interrogatories. Notwithstanding the lack of an express numerical limitation on requests for admissions, courts will still exercise their inherent power to control discovery to limit the use of requests for admissions if a party's requests impose an intolerable burden or demonstrate bad faith or abuse.69
)Practice

Tip. Attorneys should use common sense when preparing

discovery. Local rules dealing with discovery are responses to perceived discovery abuses.70 In Misco,less than one month after filing the complaint, the plaintiff served requests for 2,028 admissions, comprising 343 pages. After the plaintiff voluntarily withdrew 580 requests, this still left 1,440 requests, comprising 225 pages. Small wonder that the court found the serving of these 2,028 requests to be "both an abuse of the discovery process and an improper attempt to circumvent the local district court rule which limited the number of interrogatories to thirty."71 The attorney should consider using sets of requests, each set reasonably limited in number. The attorney should always aim not

'* E.D. Wis. Civ. L.R. 33.1.

Misco, Inc. v. United States Steel COT., 784 F.2d 198, 205-06 (6th Cir. 1986).
69

See Aaron E. Goodstein & Howard A. Pollack, Playing by the Rules in Federal Court, Milwaukee Law., Winter 1984, at 4.
70

merely to be able to defend any allegedly objectionable requests, but to be able to evoke from the judge a visceral response that the discovery is reasonable and that the objector is obstructing the discovery pro~ess.7~

D. [ 5.161 Format of Requests

Section 804.1l(l)(b) mandates that "[elach matter of which an admission is requested shall be separately set forth." This is not just a legal rule but a practice guide. The implicit command of the separateness requirement is that counsel must frame requests as narrowly as possible. Careful, concise drafting not only meets the statutory requirements but forces the answering party to focus on one specifically identified fact. This precludes an inability to answer, or an objection on grounds that the request is vague or compound, or a response that only part of the matter is true. A simple, unequivocal request demands a simple, unequivocal resp0nse.7~ As one court succinctly explains the drafter's goal: "A request for an admission, except in a most unusual circumstance, should be such that it could be answered yes, no, the answerer does not know, or a very simple direct explanation given as to why he cannot answer, such as in the case of privilege."74 Framing requests for admissions with this goal in mind may increase the number of requests necessary. To preempt an argument by opposing counsel that the drafter's requests are so numerous as to be burdensome, the drafting attorney should divide the requests into smaller sets and serve the smaller sets in reasonably timed waves. More important, if the drafting attorney specifically and unequivocally identifies each matter upon which admission is requested, opposing counsel will be hard pressed to argue that such requests, although numerous, constitute an undue or oppressive burden. In a sense, the "burden" has been assumed by the proponent of the
-

See also Safeco ofAm. v. Rawstron, 181F.R.D. 441,445-46 (C.D. Cal. 1998) (allowing interrogatoriesthat request the bases for the denials of each of 50 requests for admissions essentially transforms each request for admission into an interrogatory); In re Olympia Holding Cop., 189 B.R. 846,853 (Bank. M.D. Fla. 1995) (holding that use of interrogatories disguised as requests for admission, in attempt to circumvent rules limiting number of interrogatories, is abuse of discovery process).
72

73
74

Havenjield Cop. v. H & R Block, Znc., 67 F.R.D. 93,97 (W.D. Mo. 1973). Johnstone v. Cronlund, 25 F.R.D. 42,46 (E.D. Pa. 1960).

requests, because the proponent has taken the time necessary to identify precisely the matters on which admission is requested. Courts recognize that specificity and clarity are essential to the effective use of requests for admissions. Noting that a party "drafts complex requests at his peril," the court in DiederichY5held that a respondent could legitimately deny an entire request containing multiple, interdependent issues even if the denial rested solely on a single assertion of fact. However, when requests were capable of being separated into distinct components following a logical or chronological order, the Diederich court required the responding party to deny or admit the separate matters in sequence, even though they were contained within a single request.76 Diederich emphasized the point that there is no substitute for precision when drafting requests for admissions. In Michael A. P., the court rejected a responding party's efforts to evade precisely drafted requests. The court ruled that a request was not improper simply because it may have required explanation; instead the court expressly recognized that section 804.11 requires answering parties to qualify their responses when necessary. One of the requests asked the defendant Solsrud to admit that he was "the" general contractor on a project. Solsrud argued that he was unable to answer the request because there was more than one general contractor, making him only a general contractor. The court said that good faith required Solsrud to have, at the very least, denied the assertion and explained that there was more than one general contractor and to identify that portion of the project for which Solsrud was a general c ~ n t r a c t o r . ~ ~
46
77

Practice Tip. The limited range of permissible responses to

requests for admissions (admission, denial,justified lack of knowledge, or objection)78 allows counsel to control an opponent in ways that are simply not possible under other discovery procedures. Lawyers should not waste this opportunity by framing requests that are vague, multiple, or confusing. Therefore:

75

132 F.R.D. at 621.

76 Id. 77 78

Michael A.P., 178 W i s .2d at 149 n.3.

See infra $8 5.19-.23.

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Ch. 5 Pg. 22

1 . . Each matter upon which an admission is requested should be identified in a separate paragraph. 2. Requests containing subparts, conjunctives, or multiple assertions should be avoided entirely. 3. Requests should be so narrow and concise that explanation or qualification is unnece~sary.~~

IV. [ 5.171 Answering Requests for Admissions

A. [ 5.181 Time Limit and Effect of Failure to Answer
After a request for admission has been served, the answering party has 30 days to respond.80A defendant, however, need not serve responses until 45 days after service of the summons and complaint upon that defendanL8' If no written answer or objection is served within the prescribed time limit, "[tlhe matter is admitted."82 A lawyer who ignores the time limits of section 804.11 runs risks potentially fatal to his or her case. Section 804.1l(2) makes clear that any matter admitted under section 804.11is "conclusively established," unless the court permits withdrawal or amendment of the admission. The interplay of sections 804.1l(l)(b) and 804.1 l(2) may be devastating to the nonresponding party: failure to answer a request for admission conclusively establishes the matter upon which admission was requested. Courts are unlikely to protect a litigant from the consequences of the litigant's failure to respond to a request for admission, even if the facts admitted by that litigant's failure to respond dispose of an entire case. In Bank o f Two Rivers, the Wisconsin Supreme Court followed numerous federal cases and held that "summary judgment based upon a party's untimely or incomplete response to a request for admission can be appropriate, since the [answering] party is deemed to have in effect

79 See
80
81

infra App. 5A (sample requests for admissions).

Wis. Stat. 3 804.1 l(l)(b).

Id.

82 Id.

admitted all material facts contained therein, even though he may have denied them in his pleading^."^^ The lesson seems clear: regardless of the contents or character of requests for admissions, complete failure to respond is never appropriate. For at least three reasons, a party should serve a written response even if the party wishes to admit the matters requested. First, a written response permits the responding party to maintain control over the scope of the admission. Some individual requests may require admission or qualification, and some may not. Failing to provide a written response leaves the definition of a request for admission entirely in the hands of its proponent. However, counsel should remember that qualifications or objections responding to requests for admissions must have a good faith basis; any efforts to evade or subvert reasonable discovery requests are subject to sanctions. Second, if other discovery motions are filed against a party who has ignored requests for admissions, the party's failure to serve any response may be offered as evidence of its unwillingness to cooperate in the discovery process. For example, in reversing a trial court's decision to allow the introduction of evidence that contradicted admissions that had been established by a failure to respond to requests, a federal appellate court relied on the responding party's "patent disregard" of other discovery requests and scheduling orders.84 Third, instead of merely refusing to respond to objectionable or poorly drafted requests for admissions, counsel should always take the opportunity to explain why a request is objectionable or incoherent. It may be too late to raise such arguments in a later attempt to withdraw the admissions that have resulted from a failure to respond.85

83

Bank of Two Rivers, 112 Wis. 2d at 630-3 1. Ass'n, 930 F.2d at 1121.

84 American Auto.

For a discussion of withdrawal or amendment of admissions, see section 5.23, infra.

Ch. 5 Pg. 24

O February 2006,State Bar of Wisconsin CLE Books

B.. [ 5.191 Format of Response

1. [ 5.201 In General
The response to a request for admission must be in writing and must be signed by the party or the party's att~rney.'~ The statute does not specifically state that a party may respond with an admission, but it does set forth the various permissible responses other than an express admission. These are: (1) objection, (2) denial, and (3) inability to admit or deny. The local rules for the Eastern District of Wisconsin provide that a response or an objection to a request for admission must reproduce the request to which it refer^?^

2. [ 5.211 Objections
A party must state the reasons why requests for admissions are obje~tionable.'~Generalized criticisms are not sufficient." Moreover, failure to make objection and present argument concerning supposedly improper requests will result in waiver.g0
Several potential grounds for objection are clearly impermissible. A party may not object solely because the request deals with a genuine issue for trial. The party may deny such a request (subject to cost-of-proof sanctions under section 804.12(3)) or set forth reasons why the matter cannot be admitted or denied?'
'

>

Practice Tip. If a request for admission deals with a disputed

dispositive issue, the request may safely be denied as long as the

86 Wis.
87 E.D.

Stat. 9 804.11(l)(b).

Wis. Civ. L.R. 36.1; see infra App. 5B (sample response to requests for admissions). Wis. Stat. 9 804.11(1)@).
89

Moscowitz V . Baird, 10 F.R.D. 233 (S.D.N.Y. 1950). See Michael A.P., 178 Wis. 2d at 151 n.5.

Wis. Stat. 3 804.1l(l)(b); see infra 45 5.22-.23.

O Februarv 2006. State Bar of Wisconsin CLE Books

Ch. 5 Pg. 25

answering party had reasonable grounds to believe, at the time of denial, that the party could prevail at triaLg2 Neither may a party object to a request because an admission seeks an opinion of fact or the application of law to fact. Section 804.11(l)(a) expressly authorizes such requests. In addition, a request that seeks an admission disposing of the entire case is not for that reason ~bjectionable?~ Further, a request is not objectionable because it concerns matters lmown by a third party, rather than by the responding party?4 In this last situation, the appropriate response is to make a reasonable inquiry, then to refuse to admit or deny if that inquiry does not disclose information sufficient to permit admission or denialY5 If the burden of responding to a request is greater than the responding party believes it should reasonably have to bear, the party must state specifically what efforts have been made or why reasonable efforts could be unavailing in obtaining the requisite knowledge.96However, some decisions have held that a responding party's obligation to consult nonparties in connection with requests for admission extends only to a review of the nonparty's sworn deposition te~timony.~' Objections are appropriate when requests are compound or multiple, thus violating the requirement that "[elach matter of which an admission is requested shall be separately set forth."98A similar objection may be raised to vague or ambiguous requests. Both of these objections, however, should be supported by statements specifying how the request is unanswerable because it is multiple, or identifying the vague or ambiguous terms.

b Practice Tip. There are significant advantages to raising specifically grounded objections to requests for admissions rather than attempting to sort through confusing requests in order to admit whatever Wis. Stat. 9 804.12(3);Nelson v. L & J Press C o p , 65 Wis. 2d 770,783-84, 223 N.W.2d 607 (1974) (refusing to impose cost-of-proof sanctions under predecessor statute to current section 804.1 1).
92

93

Schmid, 111 Wis. 2d at 236.

94 Al-Jundi,
95

91 F.R.D. at 593.

Id. at 594.

96 Id. 97
98

See Diederich, 132 F.R.D. at 620; Dubin, 125 F.R.D:at 375. See Wis. Stat. 9 804.11(l)(b).

truth they may contain. First, an objection gives the requesting party the burden of moving under section 804.1 l(l)(c) for an order determining the sufficiency of an objection. Second, the potential consequences of an unfounded objection are less severe than those of a qualified or limited admission that cannot be justified. If a court finds that an objection is unjustified, the court "shall order that an answer be served."99 If an answer does not comply with the requirements of section 804.11 the court may order an amended answer or may order that the matter is admitted."' On its face, the statute does not give courts the power to deem a matter admitted simply because of an unjustifiable objection.

A party may also object that a request seeks irrelevant information, since the scope of all discovery under chapter 804 is limited to matters
, 1 0 1 "relevant to the subject matter involved in the pending action.7

3.

I 5.221 Denials

A denial "shall specifically deny the matter" being denied, and

shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.lo2 The federal courts have been hostile to qualified admissions and denials, and have not hesitated to deem matters admitted when answering parties provide equivocal answers. For example, a denial of the accuracy of the matters stated in the request, but not of the "essential truth" of those matters, has been held to be an admission.lo3 Similarly, a flat refusal to admit or deny the truth of the matters requested has been held to be an

99 Wis.
loo lo'

Stat. 8 804.1l(I)(c).

Id.

See Wis. Stat. $804.01(2)(a);c$ Fed. R. Civ. P. 26(b)(l) (limited to matters relevant to the claim or defense of any party).
lo2
lo3

Wis. Stat. 804.11(l)(b).

Havenjield Corp. v. H & R Block, Inc., 67 F.R.D. 93,97 (W.D. Mo. 1973).

admission.104And failure to respond to any particular part of a request has been treated as an admission.'05 There is no reason to believe that Wisconsin courts will be more generous.

In Michael A. P., the court of appeals affirmed a cost-of-proof sanction of $78,131.88, and rejected arguments that it termed "hypertechnical, "Io6 The requesting party had properly served requests semantic asking the defendant Solsrud to admit, for example, that he was "the" general contractor on a project. Solsrud argued that he was unable to answer the request because there was more than one general contractor, making him only "a" general contractor. The court said that good faith required Solsrud to have, at the very least, denied the assertion, explained that there was more than one general contractor, and identified that portion of the project for which Solsrud was a general contra~tor.'~~
The court specifically cited the directive in section 804.1 l(l)(b), that "when good faith requires that a party qualify an answer or deny only a part of the matter.. .the party shall specify so much of it as is true and qualify or deny the remainder."'08 The court explained that the responding party had abused the discovery process itself "by using denials to obscure and complicate the issues and to mislead" its adversary.10g At first glance, Michael A.P. appears to be at odds with the federal courts' hostility to qualified or limited admissions. However, on closer analysis, Michael A.P. is consistent with those federal cases that reject "disingenuous, hair splitting di~tinctions,""~ and denials that seek to avoid the "essential truth" of requests,"' as devices for avoiding the admission of

'" Fuhr v. Newfoundland-St. Lawrence

(S.D.N.Y. 1959).
lo5
'06 '07 '08

Shipping, Ltd., 24 F.R.D. 9, 13

United States v. AT&T, 83 P.R.D. 323,333 (D.D.C. 1979). 178 Wis. 2d at 150. Id. at 149 n.3. Id. at 149. Id. at 156. Thalheim v. Eberheim, 124 F.R.D. 34,35 @. Conn. 1988). HavenJield Corp. v. H & R Block, Inc., 67 F.R.D. 93,97 (W.D. Mo. 1973).
Q February 2006, State Bar of Wisconsin CLE Books

'09
'lo 'I'

Ch. 5 pg. 28

matters that a party knows to be true.'12 It is fair to say that the determining factor in MichaelA. P. was not the technical form of the categorical denials, but the court's displeasure with the fact that, on adverse examination, Solsrud readily admitted the matters he had denied in response to the requests.

Practice Tip. Answering parties must take seriously the demands

of section 804.11(1)@) governing qualified admissions or denials. Generally, answers that begin "Denied, except that . . ." or "Admitted, subject to . . ." exemplify the kind of equivocation that results in answers being deemed admissions. "[A] reviewing court should not permit a responding party to undermine the efficacy of the rule by crediting disingenuous, hair-splitting distinctions whose unarticulated goal is unfairly to burden an opposing party. 7,113 At least one federal court, however, has refused to allow amendment or withdrawal of admissions on the grounds that the answering party could have qualified or conditioned its responses rather than admitted the matter under assumptions contrary to the basic theory of its opponent's case.l14 The harsh result in Coca-Cola may be attributable to the fact that the answering party's "assumptions" contradicted a prior decision by the court in the case."' Nevertheless, Coca-Cola demonstrates that in some situations qualified admissions or denials may be appropriate. In most cases, however, attorneys should keep in mind the courts' customary hostility toward qualifications. Each matter upon which admission is requested should be set forth separately in the response-even if the requesting party has not followed this procedure in the requests. Then, each separate matter that is true should be admitted. The separate matters remaining, if contested, should be .denied. If the answering party believes that the request misstates facts, the best practice is to respond with an outright denial. If the request is so complex or compound that it cannot easily be broken down into separate matters, the answering party should object on the grounds that therequest violates the requirement of section 804.1 l(l)@) C '. Michael A.P., 178 Wis. 2d at 152-53.

112

Thalheim v. Eberheim, 124 F.R.D. 34,35 (D. Conn. 1988) (citing Walsh v. Connecticut Mut. Life Ins. Co., 26 F. Supp. 566,573 (E.D.N.Y. 1939)).
113

Coca-Cola Bottling Co. v. Coca Cola Co., 123 F.R.D. 97, 105-06 (D. Del. 1988).
114

See id. at 105.

that "[elach matter. . . shall be separately set forth." Objecting instead of attempting to formulate a qualified admission or denial avoids the risk that the response will be deemed an admission.

4. [ 5.231 Statements Alleging Inability to Admit or

Deny
An answer alleging a responding party's inability to admit or deny a matter is proper only when the responding party has made a reasonable inquiry and the information known or readily obtainable by that party is insufficient to enable either an admission or a denial.'16 The mere fact that the request concerns information possessed or known by someone other than the answering party does not, by itself, constitute an inability to admit or deny. Instead, the answering party must make a reasonable inquiry into the information held by other parties.

If, after a reasonable inquiry, the answering party remains unable to

admit or deny the matter requested, an answer stating that fact should be supported with reasons detailing why the available information is insuffi~ient."~ The statutory language suggests that it is sufficient simply to state that reasonable inquiry has been made and has not revealed information to support admission or denial. However, some federal courts have held that admissions cannot be avoided simply by tracking the language of Federal Rule of Civil Procedure 36 in the response, and that more information is required."* Since the risk of establishing a binding admission is so high, specificity is the better practice.

Wis. Stat. 5 804.11(l)(b).

AT&T, 83 F.R.D. at 333; United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996) ("A party must give reasons for a claimed inability to respond. It is not enough to claim lack of knowledge. A party must show the information is not reasonably within its power to obtain").
'I7

See, e.g.,Asea, Znc. v. Southern Pac. Transp. Co., 669 F.2d 1242,1245-47 (9th Cir. 1981); see also Hay & Forage, 132 F.R.D. at 694 ("Rule 36 requires a detailed explanation for the inability of the respondent to admit or deny a request"); Audiotext, 1995 WL 625744, at *2.
'I8
P h C D n 2n
0 Fehrnaw 3nnh. State Rar of Wisconsin CLE Books

> Practice Tip. Attorneys formulating answers alleging inability to

admit or deny should consider detailing directly in their response the sources consulted, the information obtained from those sources, and the reasons why that information is insufficient to permit outright admission or denial. A party requesting an admission may, if the party feels that the statutory requirements have not been met, move to determine the sufficiency of the answer, to compel a proper response, or to have the matter ordered admitted. The responding party would then have to show compliance with the requirement of making reasonable inquiry and securing knowledge and information readily obtainable.

C. [ 5.241 Withdrawal or Amendment of Admissions

Any matter admitted under section 804.11 is conclusively established unless the court on motion permits withdrawal or amendment of the admis~ion."~ Courts have considerable discretion over whether to permit withdrawal or amendment of admissions made under section 804.1 1(2), but that discretion must be exercised within the two-step test set forth in the statute.120 The court may permit withdrawal or amendment when (1) the party making the admission shows that the presentation of the merits of the action will be subserved by withdrawal or amendment; and (2) the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.12'

'I9
120

Wis. Stat. $ 804.1l(2).

See Micro Managers, 147 Wis. 2d at 5 11; see also Farr Man & Co. v. MN Rozita, 903 F.2d 871,876 (9th Cir. 1990). Wis. Stat. 5 804.1l(2); see Micro-Managers, 147 Wis. 2d at 5 11; see also Coca-Cola Bottling Co., 123 F.R.D. at 102. On appeal, the standard of review is abuse of discretion. Smith v. FarZey, No. 94-1046, 1995WL 216896 (7th Cir. Apr. 11,1995) (unpublishedorder not to be cited or used as precedent except to support claim of res judicata, collateral estoppel, or law of the case in any federal court within circuit per 7th Circuit Rule 53(b)(2)) (also stating that party who obtained i t yo f admission must prove that it would be prejudiced by withdrawal); Banos v. C Chicago, 398 F.3d 889, 892 (7th Cir. 2005) (reviewing the refusal to allow withdrawal of admissions only for abuse of discretion).
12'