• December 23, 2015

Artgate_Fondazione_Cariplo_-_Molteni_Giuseppe,_La_confessioneUnder the Minnesota (and federal) rules of civil procedure, “A party may serve upon any other party a written request for the confession admission, for purposes of the pending action only, of the truth of any matters within the scope of [proper civil discovery] set forth in the request that relate to statements, opinions of fact, or the application of law to fact, including the genuineness of any documents described in the request…” (“Opinions of fact”? “Application of law to fact”? Fortunately, lawyers and judges do not tend to read the actual rules that often so we do not have to worry much about what these awkward formulations actually mean.)

The point of requests for admission is clear: let’s not fight over what we all already know to be true. “That parties signed the contract on January 1, 2015…. Both parties signed the contract… Admit that Exhibit A, attached hereto, is the contract….” — that kind of thing. Think if it as clearing the underbrush so litigants can focus on the meat, the core, pith and crux, rather than getting mired in the superficialities, trivia, and detail (or, alternately, can avoid being shocked at trial to find out that the other side contests one or more of your basic assumptions).

But if facts are obvious and undisputed, why bother going through the effort of getting formal admissions? Parties can and will just stipulate to such basic facts, right?

Requests for admission get tricky when a litigant wants to compel the other side to admit things that are not in the nature of brush-clearing or house-keeping, but go to the core validity of any adversary’s claims and defenses.

It gets even trickier in cases involving “receivers,” or court-appointed advocates who are assigned to step into the role of, say, an insolvent business entity whose former executives are behind bars.

In such cases, you have a “good guy” assigned to “step into the shoes” of a “bad guy,” and the other side can pose questions to the “good guy,” seeking him to admit “facts” from the time before he got involved?

Trevor Cook perpetrated a $100+ million Ponzi Scheme and now R.J. Zayed serves as the court-appointed receiver” for “Oxford Global Partners, LLC, Universal Brokerage, FX, and Other Receiver Entities,” (that is, Cook’s kitchens where he prepared his feasts of fraud). Zayed, in turn, brought suit against Associated Bank, alleging, essentially, that Associated Bank was culpably involved in the Cook’s scam (see previous post here).

In the fraud-aftermath clean-up litigation, Associated Bank has served requests for admission seeking to force Zayed to admit that no one at Associated Bank was aware of Cook’s scheme. Since this goes to the heart of Zayed’s case against Associated Bank, it is no surprise that Zayed is in no rush to admit the requests. (And can one litigant be forced to “admit” what his adversary knew or did not know at a given time?)

Here is Associated Bank’s brief arguing for why it should be allowed to have answers to its requests. Here is the Receiver’s response.

I do not know how U.S. Mag. Judge Janie S.Mayeron (D.Minn.) (and then, maybe Sr. U.S. District Court Judge David S. Doty (D. Minn.)) will decide the issues. But, in my experience, requests to admit are most appropriate for the uncontroversial “bush-clearing” purpose and they are not appropriate as “summary judgment one-liners.” That is, when litigants draft them in such a way that an affirmative response is fatal to a claim in the case, it seems to me that they’re not the appropriate mechanism.

Consider that, instead of saying, “[Admit that:] During the relevant time period, no Employee of any Cook-Kiley Entity communicated to any Employee of Associated Bank that any Cook-Kiley Entity was perpetrating a fraud,” Associated Bank could have but elected not to craft its requests to say, for example, “[Admit that:] You have no admissible evidence that, during the relevant time period, no Employee of any Cook-Kiley Entity communicated to any Employee of Associated Bank that any Cook-Kiley Entity was perpetrating a fraud….”

Would that have made it more difficult for the receiver, Zayed, to answer as he did? (Zayed answered: “Plaintiff has made reasonable inquiry and the information he knows or can readily obtain is insufficient to enable him to admit or deny [this] Request.”)? Would that have made an affirmative response less valuable to Associated Bank? Requiring a response to this subtly different request might be fairer to both sides.


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