I had a lively debate a few weeks ago with colleagues I respect over whether one should explain request to admit responses that look bad on the surface but have reasonable explanations [this is a good time to acknowledge I have a very unusual conception of what constitutes a “good time”]. All of us frequently encounter request to admit responses that begin with an “admit” or “deny” but then proceed with an explanation–often a lengthy, self-serving explanation. All considered such responses “gifts”: providing extra information that was not required by the admission request; making the opposing party appear evasive, and therefore less credible, in the acknowledgment of imperfection.
However the discussion then turned to how to respond to requests to admit in which an unexplained answer would look bad but the explanation would mitigate the damage. The example discussed was a custody case in which a party was asked to admit he or she had smoked marijuana and in which that party had last smoked marijuana long before the child’s birth.
I took the firm position that one should never explain one’s request to admit response. “‘Admit’ and wait for trial to explain,” was my suggestion. “If the other attorney doesn’t follow up prior to trial that’s his or her problem.” “Explain,” was my colleagues’ suggestion. “Otherwise the judge will see the harmful admission before the explanation.”
We’d failed to consider a reasonable third option. One can always partially object to a discovery request and it’s arguable whether this request would be relevant for a time period well before the child’s conception. Thus one could have reasonably responded, “Denied as to time period since the minor child’s conception. The Plaintiff/Defendant objects to this request to admit as irrelevant, harassing, and unlikely to lead to the discovery of admissible information for time periods prior to the minor child’s conception.”
While everyone involved will understand that this response means the party used marijuana some time in the distant past, it avoids the ugliness of an outright admission–even an admission with an explanation–while remaining accurate. A partial response and partial objection may be the best way to respond to admission requests that would otherwise require an explanation.
Greg: A great topic. If more lawyers had a “good time” with such topics, lawyers would be better and would have better reputations.
In your example, I think the objection is that the request is overly broad and thus irrelevant. I do not think it is harassing. I am not sure that it will not lead to discoverable information. The beauty of an objection is that few lawyers will ever follow-up to compel a response.
My problem is that I am not sure what discovery objections are legitimate and which ones are not. I would love to have a list of legitimate discovery objections and when they apply.
As usual from you, Greg . . . excellent litigation strategic tip!
Great tip Greg – I have not objected to many Requests to Admit; however, I have offered limited explanations. On some occasions I have received paragraphs of explanations from opposing counsel with neither an admission or denial! Now that’s irrelevant information!!
Interesting points. I have to say I agree with Thomas. I prefer an objection to an admission with an explanation – why even open the door to that issue?