Timing Your Requests for Admission

ThinkstockPhotos-487826116 (1)One of many tactical decisions you need to make in litigation is when to serve requests for admission. Timing may be key to getting what you need.

Here are your parameters:

The earliest time you can serve requests for admission (RFAs):

  • A plaintiff may serve an RFA on another party without leave of court at any time that is 10 days after the other party was served with summons or appeared. CCP §2033.020(b).
  • A defendant may serve an RFA without leave of court “at any time.” CCP §2033.020(a).

The deadline for serving RFAs:

There are practical limits on how close you can serve an RFA to the trial date. The party served with requests doesn’t have to respond until the 30th day after the requests are served unless the time to respond has been shortened. CCP §2033.250(a). The requesting party has a right to “complete discovery proceedings” (i.e., to receive a response to an RFA) no later than the 30th day before the date initially set for trial and to have a motion for an order compelling further response, or for an order that matters be deemed admitted, heard after the 15th day before the trial date. CCP §2024.020(a).

Give yourself plenty of time before the discovery cutoff, because if you’re not ok with a response you’ve received and want to move to compel further responses (CCP §2033.290), you’ll first have to engage in the meet-and-confer process with opposing counsel (see CCP §2033.290(b)), and if that’s not successful, your motion for an order to compel further responses needs to be served at least 16 court days before the hearing date (plus 5 days for service by mail; CCP §1005(b)), and must be set for hearing at least 15 days before the initial trial date (CCP §2024.020(a)). That can make for pretty tight timing!

So it’s a good idea to serve RFAs at least 90 days before trial. This isn’t the absolute minimum, but it allows some leeway for each stage of the procedure, which may be necessary when key time periods end on a Sunday or holiday.

The tactical considerations for timing your RFAs:

Thinking tactically, it may be useful to serve RFAs early in a case because such requests may elicit admissions that greatly narrow the extent of discovery and investigation you’ll have to do. But in other cases, it’s more convenient to wait until issues have been narrowed by other discovery methods before using an RFA to eliminate some of the issues that apparently remain.

Often, the early service of an RFA results in getting no information of any real use. This is because the early service of an RFA comes at a time when investigation and other forms of discovery haven’t yet yielded fruitful information.

Using RFAs at an early stage of litigation (before interrogatories or depositions) may be appropriate if the responding party is viewed as having a superior body of information that may permit it to respond in a meaningful way. This means that the early service of an RFA may be more effective from a plaintiff to a defendant than the reverse.

As with interrogatories, there’s no continuing duty to respond to an RFA. So another drawback to early service is that, if a party responds truthfully to an RFA but later learns otherwise, the party has no duty to amend or withdraw the response.

For everything you need to know about serving requests for admission, turn to CEB’s California Civil Discovery Practice, chap 9.

Other related CEBblog™ posts:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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