24 Trial Lawyer • Winter 2024 truth of relevant matters, including facts or opinions of fact, or the application of law to fact[.]”. ORCP 45 B is then very specific about the responding party’s obligation to fully and accurately respond, with limitations on objections and qualifying language. When a responding party fails to comply with these rules, the requesting party can file a motion to determine the sufficiency of the responses. ORCP 45 C. If the court finds the responses noncompliant, the court may either order that the matters at issue are deemed admitted or order the responding party to amend its answers. Id. Examples of insufficient responses A particularly irksome response is the “I admit my version of your request” response. I’ve often had defendants admit to a carefully redrafted version of my request that, shockingly, does not quite get at the heart of the issue. For example, in a child abuse case against an institutional defendant, I requested: “Admit that Defendant did not have any child abuse reporting policies in place during the relevant time period.” Defendant responded: “Admit that Defendant did not have any written child abuse reporting policies.” That response leaves the door wide open for defendant to argue at trial that while it did not have any written policies, it had oral or understood policies. That does not narrow the issues at all. I successfully argued to the court the parties are not allowed to rewrite requests, then only answer their version of the rewritten request. They can deny it if they do not agree with a request’s premise, but not rewrite it. Another frequent flyer is an admission or denial plus a “qualification.” Defendants might admit a request but provide a justification or explanation for their conduct. For example, I once asked a defendant to admit that their organization did not have a specific policy prohibiting a course of dangerous conduct. The defendant responded to the effect of, “Admit inasmuch as no other organization during the relevant time period had such a policy.” That is absolutely an argument a defendant can make to a jury. But it’s not appropriate to insert a justification as a means of undercutting the import of the response and making it more palatable to the defense. Additionally, parties are permitted to “qualify” an admission or denial when “good faith requires” it. That caveat does not give parties carte blanche to inject whatever superfluous and irrelevant information they so desire. See ORCP 45 B. Another misstep is when defendants respond that they cannot admit or deny a request because it involves a disputed issue of fact or law. In fact, ORCP 45 explicitly states that RFAs can relate to “genuine issue[s] for trial.” “Genuine issue[s] for trial” can include facts, opinions of fact, or the application of law to fact. ORCP 45. Finally, I do not suffer boilerplate objections in RFAs. I make defendants justify their objections and, if they can’t, I move to strike them. For example, if a defendant responds that the request is “vague and ambiguous” but “subject to those objections” admits or denies the request, I do not want the defendant to have an avenue to wriggle out of the binding effect of that admission at trial. What I’ve learned • Take the time to craft tight Requests for Admissions that are tailored to the most important issues in a specific case. It will be a tough sell trying to convince a court to grant relief against form responses when you’ve also sent form requests. • Define specific terms that are capable of multiple interpretations and make sure the definitions fit the actual terms used in that set of requests. • Keep them narrow. The narrower the request, the less likely it is the defendant can wiggle out of it on a technicality. • Unless related to the admissibility of business records, you are limited to 30 requests, without court approval. Don’t waste them on issues for which you’re never going to get an admission. Use them to narrow the issues and make your job easier at trial. If something is truly uncontested, think about whether a stipulation would be better. • Think carefully about your language. When drafting RFAs, I think about how I would advise my client to respond if I really wish the client did not have to admit it. That helps me spot the loopholes in my own drafting. Conclusion Our clients pay us to move cases forward, not just act defensively. Jolting defense attorneys out of complacency by removing some of their go-to resources is a good way of doing this. Ashley Vaughn is a partner at Dumas & Vaughn, LLC, 3835 NE Hancock St., Ste. GL-B, Portland, OR 97212. Vaughn represents survivors of child sexual abuse, adult sexual assault and harassment, and domestic violence in civil litigation and crime victims’ rights proceedings. She contributes to OTLA Guardians at the Sustaining Members level. She can be reached at 503765-5313 or ashley@dumasandvaughn. com. 1 All of these except a motion for summary judgment require conferral first. My advice on motion practice assumes your meaningful conferral was unsuccessful. 2 “The quintessential function of Requests for Admissions is to allow for the narrowing of issues, to permit facilitation in presenting cases to the factfinder and, at a minimum, to provide notification as to those facts, or opinions, that remain in dispute.” Lakehead Pipe Line Co. v. Am. Home Assur. Co., 177 FRD 454, 457-58 (D Minn 1997). See also Asea, Inc. v. S. Pac. Transp. Co., 669 F2d 1242, 1245 (9th Cir 1981). While Oregon case law on the sufficiency of requests for admissions responses is scarce, federal case law is instructive because ORCP 45 is modeled after FRCP 36. On The Offense Continued from p 23
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