Converse Requests for Admission—One of My Favorite Discovery Tools in Trademark Litigation
When I refer to converse requests for admission, I am referring to the practice of propounding a request for admission asking the other party to admit a fact and then propounding a request for admission asking the party to admit the negative of that fact. In other words, each request is the converse of the other. These types of requests for admission have also been referred to as mirror-image requests for admission or reverse requests for admission.
As an example, you could propound the following requests for admission:
Request for Admission No. 1:
Admit that You did not sell any shoes under the ROORUN trademark in 2003.
Request for Admission No. 2:
Admit that You did sell shoes under the ROORUN trademark in 2003.
Ideally, after serving a set of converse requests, you should have one admission and one denial. This should help you nail down facts and limit what you need to prove on summary judgment or at trial.
How I Started Using Converse Requests for Admission
I first learned about using converse requests for admission when I read Steven Stark’s book Writing to Win: The Com
plete Guide to Writing Strategies That Will Make Your Case And Win It. In Writing to Win, the tenth chapter is dedicated to discovery and contains a list of 10 tips for writing discovery. The seventh tip is to use requests for admission freely and always give the converse of the admission as the next request. I have been using Mr. Stark’s tip ever since I read it with great effectiveness. In fact, that tip by itself was worth buying and reading his book. Writing to Win is a very reasonably priced legal writing book worth adding to your library.
Advantages of Converse Requests for Admission
Converse RFAs Do a Better Job of Pinning Down Facts and Positions
Unlike interrogatories, there is no limit to how many requests for admission you can serve under Rule 36. Therefore, you do not need to worry about the additional number of requests that will be generated by propounding mirror-image requests.
Propounding converse requests for admission makes your opponent work more than if you simply propounded regular requests for admission. Obviously, by propounding a corresponding mirror-image request, you are increasing the sheer number of requests that your opponent has to respond to. More importantly, however, by serving converse requests for admission, you are forcing your opponent to really think through its position on different issues and facts. Rather than receiving the usual blanket denials that come in response to standard requests for admission, I have noticed that I tend to receive more truthful and usable responses when I serve converse requests for admission. Opposing parties feel almost obligated to admit one of the converse requests while denying the other.
This, in turn, helps accomplish the all-important purpose of serving requests for admission in the first place—nailing down an opponent’s position on facts and issues, as well as dispensing with having to prove undisputed facts. An opponent’s responses to converse requests for admission can go a long way to winning a dispositive motion.
Converse RFAs Can Set You Up Nicely for Sanctions
FRCP 37(c)(2) provides that “[i]f a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or a matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, and attorneys’ fees, incurred in making that proof.” Therefore, if the responding party is denying both sets of converse requests, your chances of getting sanctions/attorneys’ fees under Rule 37(c)(2) increase.
In Interland, Inc. v. Bunting, the Northern District of Georgia scolded a defendant who had denied both sets of converse requests for admission and reminded him that sanctions could follow:
Nonetheless the Court admits its skepticism that both “sides” of Bunting’s denials could be made in good faith. Bunting is advised to reconsider his position, as this conduct is sanctionable if Bunting requires Interland to undertake unnecessary efforts to prepare for and present evidence at trial.
Interland, Inc. v. Bunting, No. 1:04-cv-444, 2005 U.S. Dist. LEXIS 36112, *32 (N.D. Ga. Mar. 31, 2005).
Drawbacks of Converse Requests for Admission
At this time, I think there is only one real drawback of using converse requests for admission. This drawback only occurs in very limited circumstances, namely, when the responding party completely fails to respond to the requests for admission. When this happens, FRCP 36(a)(3) provides that the request is admitted if the party fails to respond.
So if you are dealing with an opposing party that has completely blown off your converse requests for admission and wholly failed to respond, you are going to be left with admissions to both sets of converse requests for admission (i.e., the request asking the party to admit a fact and the one asking the party to admit the opposite of that fact). This means you will be left with contradicting admissions, which, in turn, means you may not be able to establish a fact as admitted or uncontested for purposes of a motion, summary judgment, or trial. For example, in Denn v. Allstate Life Insurance Company, the Northern District of Texas did not permit the defendant to rely on admitted converse requests for admission after a failure to respond to establish diversity jurisdiction, which requires an amount in controversy of at least $75,000:
[H]er deemed admissions of the RFAs did not allow Life Investors to ascertain whether this case was removable. In the RFAs, Life Investors not only requested that Denn admit that she seeks to recover over $75,000, but it also requested that Denn admit the converse. … That is, Life Investors also requested that Denn admit that she does not seek to recover over $75,000. Consequently, Denn’s failure to timely respond to the RFAs resulted in the admission of diametrically opposite facts, viz., that she does—and does not—seek over $75,000 in damages from Life Investors in this case.
Denn v. Allstate Life Insurance Company, No. 3:97-cv-1892, 1997 U.S. Dist. LEXIS 20363, *3-4 (N.D. Tex. Dec. 16, 1997).
However, in the vast majority of cases where you are dealing with a reputable opposing counsel and opposing party, it is unlikely that they will simply choose not to respond at all to requests for admission. At a minimum, you’ll usually be served with objections, which prevents the requests from being deemed admitted under FRCP 36(a)(3). Accordingly, while I am aware of this potential drawback, I still find that the advantages of using converse requests for admission still greatly outweigh this one drawback.
Moreover, with this issue having received very little treatment by federal courts, I would consider attempting to pick and choose which requests to rely on if this scenario presented itself and seeing if the court would allow it. Alternatively, if I become aware that the opposing party is simply going to ignore requests for admissions and have them deemed admitted, I might consider serving another set containing only the requests that I want admitted, which I could then use an exhibit that does not contain the converse requests I did not want admitted.
Federal Courts Have Found Them Proper
You may be wondering whether converse RFAs are permitted under FRCP 36. In reading Rule 36, there clearly isn’t any explicit prohibition against using converse RFAs. Yet, when I serve converse RFAs on an opposing attorney who has not seen RFAs used in such a way, I will often receive a letter or phone call objecting to their use. But according to the few federal courts that have had the opportunity to address the use of converse RFAs, they are entirely permissible. And that’s what I point to in any discovery meet and confer on the issue.
In Layne Christensen Company v. Purolite Company, the defendant served converse requests for admission on the plaintiffs, who then filed a motion for protective order arguing, among other things, that converse requests are improper. However, the District of Kansas disagreed:
The Court finds nothing per se objectionable about “converse” requests for admission that ask a party to admit one set of facts and then to admit the negative. Plaintiffs have not negated that they ask for different admissions and, therefore, are not simply duplicative or cumulative. For example, asking SenGupta to admit “The Patent-In-Suit is the first disclosure of a method for synthesizing a selective absorbent that contains dispersed particle of iron in a resin,” is different from asking him to admit “The Patent-In-Suit is not the first disclosure of a method for synthesizing a selective absorbent that contains dispersed particle of iron in a resin.” Admitting one does not necessarily mean that the converse must always be denied. A party may admit one request and deny the other, moreover, or respond that it has insufficient information to admit or deny either request. The Court denies the motion to the extent it seeks an order to relieve Plaintiffs from responding to “converse” requests for admission.
Layne Christensen Company v. Purolite Company, No. 09-2381, 2011 U.S. Dist. LEXIS 6737, *23 (D. Kan. Jan. 25, 2011). Likewise, in Interland, Inc. v. Bunting, the Northern District of Georgia implied that converse requests for admission are permissible and proper when it considered the sufficiency of the defendant’s responses to converse requests for admission. Interland, Inc. v. Bunting, No. 1:04-cv-444, 2005 U.S. Dist. LEXIS 36112, *31-32 (N.D. Ga. Mar. 31, 2005).
Samples, Samples—Get Your Samples
If you’re like me, you’re big on samples. Whenever I was drafting any document for the first time, I always wanted to get my hands on a few samples. Not to outright copy the samples (which usually isn’t an option anyway), but just to get a sense of what other attorneys were doing and their individual strategies, tactics, and styles. I would pick and choose what I felt was worthwhile and what meshed with my strategies, tactics, and style. In this vein, here are a few sample converse requests for admissions that I have served in trademark cases.