Transcript of Civil discovery (section 9 11-37)
- 1. Re-Post (from 12/11/14 on Requests to Admit) by merlin on
July 5th, 2015 Because I am directly working with this statutory
provision today (Section 9-11-37), this post from last year is
relevant: One important method of Civil Discovery which can be
useful to employ is known as the Request to Admit. It often
involves asking questions that are drawn directly from the
Complaint or Petition that began the case, or the Answer/Response
if sent on behalf of the defendant/respondent, but there is an art
to it. They involve making a statement, preferably drawn directly
from the documents but rephrased in such a way as to make a general
statement of fact, or to refer to a specific event, seeking an
affirmation, a denial, or an objection, and an explanation where an
explanation is needed. Some things will obviously be denied and it
is a waste of time to even put them out there (i.e. a loud, ugly
statement like Admit that you are a bad parent, which you already
know will be justifiably denied, no matter what). However, some
questions seek foundational information that there is an objective
record to support, which provides the inference and associated
information that is needed to prove your point (such as stating
that a person was arrested for drug possession at a particular
location and particular time, thereby implying that they are a drug
user, and possibly going toward an argument that they are not a
good parent; more importantly, a police report will have been
written documenting this incident, and their denial makes it
relevant to bring up in Court against them; you will be able to
introduce both of these things to impeach their credibility,
showing both their untruthfulness and the bad thing that they are
hiding). The actual Georgia Code Section that defines Requests to
Admit is 9-11-36, which reads as follows: (a) Scope; service;
answer or objection; motion to determine sufficiency. (1) A party
may serve upon any other party a written request for the admission,
for purposes of the pending action only, of the truth of any
matters within the scope of subsection (b) of Code Section 9-11-26
which are set forth in the request and that relate to statements or
opinions of fact or of the application of law to fact, including
the genuineness of any documents described in the request. Copies
of documents shall be served with the request unless they have been
or are otherwise furnished or made available for inspection and
copying. The request may, without leave of court, be served upon
the plaintiff after commencement of the action and upon any other
party with or after service of the summons and complaint upon that
party. (2) Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30 days
after service of the request or within such shorter or longer time
as the court may allow, 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
attorney; but unless the court shortens the time, a defendant shall
not be required to serve answers or objections before the
expiration of 45 days after service of the summons and complaint
upon him. If objection is made, the reasons therefor 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 answer or deny only a part of the matter of which
an admission is requested, he 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 states that he has made reasonable inquiry
and that the information known or readily obtainable by him is
insufficient to enable him 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 may, subject to subsection (c) of Code Section
9-11-37, deny the matter or set forth reasons why he cannot admit
or deny it. (3) The party who has requested the admissions may move
to determine the sufficiency of the answers or objections. Unless
the court determines that an objection is justified, it shall order
that an answer be served. If the court determines that an answer
does not comply with the requirements of this subsection, it may
order either that the matter is admitted or that an amended answer
be served. The court may, in lieu of these orders,
- 2. determine that final disposition of the request be made at a
pretrial conference or at a designated time prior to trial.
Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply
to the award of expenses incurred in relation to the motion. (b)
Effect of admission. Any matter admitted under this Code section is
conclusively established unless the court, on motion, permits
withdrawal or amendment of the admission. Subject to Code Section
9-11-16 governing amendment of a pretrial order, the court may
permit withdrawal or amendment when the presentation of the merits
of the action will be subserved thereby and the party who obtained
the admission fails to satisfy the court that withdrawal or
amendment will prejudice him in maintaining his action or defense
on the merits. Any admission made by a party under this Code
section is for the purpose of the pending action only and is not an
admission by him for any other purpose, nor may it be used against
him in any other proceeding. Something that is often overlooked
when folks are analyzing or responding to the Requests Section
9-11-36(2) of the Official Code of Georgia requires that [t]he
answer shall specifically deny the matterAND fairly meet the
substance of the requested admission; and, when good faith requires
that a party qualify his answer or deny only a part of the matter
of which an admission is requested, he shall specify so much of it
as is true and qualify or deny the remainder. What this means,
though sharp minds have tried to qualify it a little, is that there
needs to be more than just a bald denial of the truth of the
statement; rather, they need to say why they dispute its truth.
This gets really ugly if the party asking is actually in possession
of, or can easily obtain, the proof of the matter. Then, they have
a remedy (DISCLAIMER REMOVED I have made use of this provision with
wonderful effect, and it is important to make sure that you cover
every aspect of that which you are trying to prove in order to
ensure your ultimate victory), which is set down at subsection (3).
The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. More interestingly,
this subsection has some teeth built into it Unless the court
determines that an objection is justified, it shall order that an
answer be served. If the court determines that an answer does not
comply with the requirements of this subsection, it may order
either that the matter is admitted or that an amended answer be
served. For obvious reasons, the former remedy is preferable to the
latter. Subsection (a)(3) above sates that Paragraph (4) of
subsection (a) of Code Section 9-11-37 shall apply to the award of
expenses incurred in relation to the motion. That section is quite
plainly identified as Award of Expenses of Motion, and it reads as
follows: (A) If the motion is granted, the court shall, after
opportunity for hearing, require the party or deponent whose
conduct necessitated the motion or the party or attorney advising
such conduct or both of them to pay to the moving party the
reasonable expenses incurred in obtaining the order, including
attorneys fees, unless the court finds that the opposition to the
motion was substantially justified or that other circumstances make
an award of expenses unjust. (B) If the motion is denied, the court
shall, after opportunity for hearing, require the moving party or
the attorney advising the motion or both of them to pay to the
party or deponent who opposed the motion the reasonable expenses
incurred in opposing the motion, including attorneys fees, unless
the court finds that the making of the motion was substantially
justified or that other circumstances make an award of expenses
unjust. (C) If the motion is granted in part and denied in part,
the court may apportion the reasonable expenses incurred in
relation to the motion among the parties and persons in a just
manner. In subsection (A) above, I emphasized certain terms. This
section shows that the winner gets costs and fees; the judge MUST
grant the reasonable expenses incurredincluding attorneys fees
unless the judge actually expressly finds (a term of art) that the
motion is granted but opposition to the motion was substantially
justified, or that bringing the motion was substantially justified
but the motion is denied, or the Court can mix and match the fees
among the parties and persons in a just manner.
- 3. Something that also needs to be pointed out is the provision
made for proving the other part wrong (and getting the cost paid
back for proving them wrong) found in Section 9-11-37(c): [i]f a
party fails to admit the genuineness of any document or the truth
of any matter as requested under Code Section 9-11-36 and if the
party requesting the admissions thereafter proves the genuineness
of the document or the truth of the matter, he may apply to the
court for an order requiring the other party to pay him the
reasonable expenses incurred in making that proof, including
reasonable attorneys fees. The court shall make the order unless it
finds that the request was held objectionable pursuant to
subsection (a) of Code Section 9-11-36, or the admission sought was
of no substantial importance, or the party failing to admit had
reasonable ground to believe that he might prevail on the matter,
or there was other good reason for the failure to admit. I have
again placed emphasis on certain terms in the above section,
because the section is largely mandatory, and really requires that
the party who lied but who needs to be disproven pay for the cost
of showing that they are liars. There is an out for the Court to
keep from having to assess costs against the untruthful party, but
it requires that it formally hold the request to admit
objectionable (again, a term of art), find that the request was
seeking an admission that lacked substantial importance (and
well-drafted admissions wont be seeking anything trivial,
generally), agree with the party that was defending their fib that
they could have prevailed, or and this is largely a catch-all, that
needs to be debunked pretty thoroughly when it is used there was
other good reason for the failure to admit. Section 9-11-36(b)
details the effect of an admission, which gives a taste of the
power of this Civil Discovery method. According to that subsection,
[a]ny matter admitted under this Code section is conclusively
established unless the court, on motion, permits withdrawal or
amendment of the admission. Subject to Code Section 9-11-16
governing amendment of a pretrial order, the court may permit
withdrawal or amendment when the presentation of the merits of the
action will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment
will prejudice him in maintaining his action or defense on the
merits. Again, certain terms have been emphasized above. They are
there to note that there must be a motion made before the Court can
allow an admission to be withdrawn or amended, and also to note
that this can only be done when the presentation of the merits of
the action will be subserved thereby and the party who obtained the
admission fails to satisfy the court that withdrawal or amendment
will prejudice him in maintaining his action or defense on the
merits. This is a two-step showing, and it needs to be
affirmatively made by the party seeking to prevent the withdrawal,
apparently. Share this: - See more at:
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admit/#comments