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Re-Post (from 12/11/14 on Requests to Admit)

by merlin on July 5th, 2015
  • Sumo

Because I am directly working with this statutory provision today (Section 9-11-37), this post from last year is relevant:

One important method of Civil Discovery which can be useful to employ is known as the Request to Admit.  It often involves asking questions that are drawn directly from the Complaint or Petition that began the case, or the Answer/Response if sent on behalf of the defendant/respondent, but there is an art to it.  They involve making a statement, preferably drawn directly from the documents but rephrased in such a way as to make a general statement of fact, or to refer to a specific event, seeking an affirmation, a denial, or an objection, and an explanation where an explanation is needed.  Some things will obviously be denied and it is a waste of time to even put them out there (i.e. a loud, ugly statement like “Admit that you are a bad parent”, which you already know will be justifiably denied, no matter what).  However, some questions seek foundational information that there is an objective record to support, which provides the inference and associated information that is needed to prove your point (such as stating that a person was arrested for drug possession at a particular location and particular time, thereby implying that they are a drug user, and possibly going toward an argument that they are not a good parent; more importantly, a police report will have been written documenting this incident, and their denial makes it relevant to bring up in Court against them; you will be able to introduce both of these things to impeach their credibility, showing both their untruthfulness and the bad thing that they are hiding).

The actual Georgia Code Section that defines Requests to Admit is 9-11-36, which reads as follows:

(a) Scope; service; answer or objection; motion to determine sufficiency.
(1) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.
(2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney; but unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to subsection (c) of Code Section 9-11-37, deny the matter or set forth reasons why he cannot admit or deny it.
(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion.
(b) Effect of admission. Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.

Something that is often overlooked when folks are analyzing or responding to the Requests Section 9-11-36(2) of the Official Code of Georgia requires that[t]he answer shall specifically deny the matter…AND fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.”  What this means, though sharp minds have tried to qualify it a little, is that there needs to be more than just a bald denial of the truth of the statement; rather, they need to say why they dispute its truth.

This gets really ugly if the party asking is actually in possession of, or can easily obtain, the proof of the matter.  Then, they have a remedy (DISCLAIMER REMOVED – I have made use of this provision with wonderful effect, and it is important to make sure that you cover every aspect of that which you are trying to prove in order to ensure your ultimate victory), which is set down at subsection (3).  “The party who has requested the admissions may move to determine the sufficiency of the answers or objections.”  More interestingly, this subsection has some teeth built into it – “Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served.”  For obvious reasons, the former remedy is preferable to the latter.

Subsection (a)(3) above sates that Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion.  That section is quite plainly identified as “Award of Expenses of Motion”, and it reads as follows:

“(A) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(B) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.”

In subsection (A) above, I emphasized certain terms.  This section shows that the winner gets costs and fees; the judge MUST grant “the reasonable expenses incurred…including attorney’s fees” unless the judge actually expressly “finds” (a term of art) that the motion is granted but opposition to the motion was substantially justified, or that bringing the motion was substantially justified but the motion is denied, or the Court can mix and match the fees “among the parties and persons in a just manner.”

Something that also needs to be pointed out is the provision made for proving the other part wrong (and getting the cost paid back for proving them wrong) found in Section 9-11-37(c):[i]f a party fails to admit the genuineness of any document or the truth of any matter as requested under Code Section 9-11-36 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to subsection (a) of Code Section 9-11-36, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.”

I have again placed emphasis on certain terms in the above section, because the section is largely mandatory, and really requires that the party who lied but who needs to be disproven pay for the cost of showing that they are liars.  There is an “out” for the Court to keep from having to assess costs against the untruthful party, but it requires that it formally “hold” the request to admit objectionable (again, a term of art), find that the request was seeking an admission that lacked “substantial importance” (and well-drafted admissions won’t be seeking anything trivial, generally), agree with the party that was defending their fib that they could have prevailed, or – and this is largely a catch-all, that needs to be debunked pretty thoroughly when it is used – “there was other good reason for the failure to admit.”

Section 9-11-36(b) details the effect of an admission, which gives a taste of the power of this Civil Discovery method.  According to that subsection, “[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”

Again, certain terms have been emphasized above.  They are there to note that there must be a motion made before the Court can allow an admission to be withdrawn or amended, and also to note that this can only be done “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.”  This is a two-step showing, and it needs to be affirmatively made by the party seeking to prevent the withdrawal, apparently.

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