Lamson, Dugan and Murray, LLP, Attorneys at Law

Tymar v. Two Men and A Truck – Three Keys To Dealing with Requests for Admission

Posted in Discovery, Trial

One of the most dangerous discovery vehicles is requests for admission, or § 6-336 of the Nebraska Rules of Discovery.  In Tymar v. Two Men and A Truck, 282 Neb. 692, __ N.W.2d __ (2011), the Nebraska Supreme Court provided a reminder of the dangers of failing to properly address requests for admission.   As a quick refresher, a party must timely respond to requests for admission as provided in the pertinent portion of § 6-336(a) to avoid having the requests be deemed admitted.

The matter is admitted unless [] 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 or her attorney []. If objection is made, the reasons therefore 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 or her answer or deny only a part of the matter of which an admission is requested, he or she 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 or she states that he or she has made reasonable inquiry and that the information known or readily obtainable by him or her is insufficient to enable him or her 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 or she may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why he or she cannot admit or deny it.

Tymar involved an appeal of the Nebraska Public Service Commission’ s (Commission) denial of Tymar, LLC’s (Tymar) application for authority to act as a common carrier of household goods in interstate commerce in certain areas of Nebraska.  During the course of discovery, Tymar served a series of requests for addmission to the protestants of Tymar’s application.  With the exception of one protestant, all of the protestants failed to respond to the requests for admission.  At the hearing on the application, Tymar established the necessary foundation for the requests to be deemed admitted.  Tymar’s argument was rejected and Tymar’s application was denied by the Commission.  The Lancaster County District Court affirmed the Commission’s determination.

On appeal to the Nebraska Supreme Court, the protestants asserted Tymar’s requests went to the ultimate issues of the case, and were not proper under §6-336.  The Nebraska Supreme Court rejected that argument and concluded “the  the language of Rule 36 contemplates that, if the request for admission seeks information that is permissible under Rule 26, the request can ask a party to admit facts in dispute, the ultimate facts in a case, or facts as they relate to the law applicable to the case.”  Id. at 705-706, ___ N.W.2d at ___.  The Nebraska Supreme Court then determined the lower tribunals failed to give proper effect to the requests and reversed and remanded for reconsideration of Tymar’s application consistent with the Court’s opinion.  Id. at 711, ___ N.W.2d at ___.

In response to Tymar and §6-336, there are three simple and important steps all attorneys should take in response to a series of requests for admission.  First, always calendar the deadline for your responses.  Second, always review §6-336 when drafting the responses.  Third, always provide a timely and proper response or objection in accordance with §6-336.

 

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