Commentary: Responses to requests for admission: How late is too

Daily Record, The (Baltimore), Oct 21, 2005 by Paul Sandler

Every litigator knows that late filings are to be avoided, but when it comes to discovery responses some advocates will often miss the deadline. Two recent cases have shed light on the variable consequences of doing so when the response concerns a request for admission of facts.

Under the Maryland rules of procedure, responses are due 30 days after discovery is served and lawyers are expected to make good faith efforts to resolve disputes before the court intervenes. Some lawyers regard counsel's discovery letter as their first notice that they ought to provide their party's overdue responses.

But what about requests for admission of facts and genuineness of documents under Rule 2-424? According to the rule, if a party does not respond to a request within 30 days of service, the requested matters shall be deemed admitted. Thus, the failure of a party to adhere to the 30-day deadline could be fatal.

Whether and when a court will excuse a party's tardiness in this situation is a matter of equity and discretion. The cases of Wilson v. Crane and Gonzales v. Boas, both decided this year, illustrate opposite ends of the spectrum on the issue.

Too close to trial

Wilson, 385 Md. 185 (2005), concerned an electrician who had died of mesothelioma caused by asbestos exposure. The electrician's family sued several asbestos manufacturers for wrongful death. Nearly three months before trial, the plaintiff filed requests under Rule 2-424, asking the manufacturers to admit that their asbestos- containing products were present at the electrician's various job sites.

Three of the defendants failed to file timely responses, and thus by rule the requested matters were deemed admitted. Two weeks before trial, two of these tardy defendants moved to withdraw or amend the deemed admissions, and the trial court granted their requests. The third tardy defendant, however, waited until just four days before the trial to seek the same relief, and this request was denied.

Why should the first two defendants get a pass while the third should not? How late is too late? The Court of Appeals gave its answer in Wilson. Deciding whether to allow a withdrawal or amendment of an admission requires balancing the right to a full trial on the merits, including the presentation of all relevant evidence, with the necessity of justified reliance by parties on pre- trial procedures and finality as to issues deemed no longer in dispute.

Accordingly, the Court of Appeals affirmed the trial court's rejection of the third defendant's motion. By the time that defendant had responded, the plaintiff had already scaled back or even abandoned specific strategies, such as using product identification witnesses. Four days before trial was much too late.

Lack of prejudice

Gonzales, 162 Md. App. 344 (2005), dealt with the same issue, but the outcome was different. The defendant responded to the initial complaint for battery with requests asking the plaintiff to admit to facts that would negate the claim. The deadline came and went with no response, and the defendant promptly moved for summary judgment. Eight days after the deadline, the plaintiff finally filed a response denying all of the requests for admission and moved to amend or withdraw the deemed admissions.

The trial court did not allow the plaintiff to amend or withdraw, struck as untimely the response she did file, and granted summary judgment in favor of the defendant. Ouch!

Luckily for the plaintiff, the Court of Special Appeals had a different take.

In light of the Wilson opinion, the court found that no prejudice would befall the defendant if the plaintiff were permitted to withdraw the admissions. The untimely responses were only eight days late, and the issue arose at the very early stages of litigation, long before trial. The interest in having the specifics of the plaintiff's claims discovered and litigated were not outweighed by any justified reliance on the plaintiff's untimely response.

Although it excused plaintiff counsel's tardiness, the court in Gonzales sounded a cautionary note. Writing for the court, Judge James Eyler observed that rules violations:

will be excused, or a lesser sanction imposed, only in those rare instances in which a literal application, or a heavier sanction, denies justice. Litigation is a dispute resolution process, not a game. Ordinarily, a trial court's exercise of discretion, including when it literally applies the Rules, will be accorded great deference and upheld. - This opinion should not be interpreted as condoning the late filing of a response to a request for admissions or any other violation of the Rules. Balanced against the need for enforcement of the rules, however, is the dependence of litigants on the sound exercise of discretion, when permitted by the Rules, to prevent injustice resulting from an insubstantial technicality.

No harm, no penalty?

Obviously, the surest means to avoid a problem is always to meet deadlines. However, when a litigant makes an honest error and files late, so long as the mistake is promptly corrected and the opponent is not prejudiced, it appears that the courts will be reluctant to penalize. Practitioners on the other side of the error may do well to recognize this approach and respond accordingly.