admissions-state bar cle books 2006

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. . . . .. [ 5.241 Withdrawal or Amendment of Admissions 3 1V. [# 5.251 Judicial Supervision and Enforcement . . . . . . . . . 37VI. [ 5.261 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

5A Sample Requests for Admissions .................... 445B Sample Response to Requests for Admissions . . . . . . . . . . 495C Sample Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

I. [ 5.11 Scope of ChapterSection 804.11 of the Wisconsin statutes' governs the discovery

procedure known as requests for admissions. This chapter reviews thenature and purpose of requests for admissions, compares requests foradmissions to other discovery procedures, and discusses the proceduralrequirements governing the use of requests for admissions. The chapteralso includes a set of sample requests for admissions, a sample response torequests for admissions, and a set of sample follow-up interrogatories.> Practice Tip. Section 804.11 is based on Federal Rule of CivilProcedure 36. Although this chapter deals with Wisconsin law, therelative dearth of reported Wisconsin cases concerning section 804.1 1requires frequent reference to federal case law. Thus, as a general rule,lawyers seeking guidance on specific issues relating to requests foradmissions should consult federal cases interpreting Federal Rule ofCivil Procedure 36. The Wisconsin Supreme Court has implicitlyapproved the use of federal case law by relying on federal decisions incases that have construed section 804.11 2 In addition, the Wisconsin

Unless otherwise indicated, all references in this chapter to the WisconsinStatutes are to the 2003-04 Wisconsin Statutes, as affected by acts through 2005Wisconsin Act 60. Textual references to the Wisconsin Statutes are hereinafterindicated as "chapter xxx" or "section xxx.xx,"without the designation "of theWisconsin Statutes." . - --

See, e.g., Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 630-31, 334N.W.2d 230 (1983). In Mucekv. Nationwide Communications,Inc.,2002WI App60, 7 29,252 Wis. 2d 426,643 N.W.2d 98, the court noted that section 804.1 l(2)Vh. 4 PO. O Fehn~arv006. State Rar ofWisconsinCLE Books


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Court of Appeals has expressly recognized the "instructive" value offederal precedent construing Federal Rule of Civil Procedure 37 asapplied to cost-of-proof sanctions when the matters denied werethereafter proved at trial.3 Federal decisions construing the proceduralcounterparts to the Wisconsin Rules of Civil Procedure are persuasive,but are not ~ontrolling.~

11. [ 5.21 In GeneralA. [s5.31 Nature and Purpose of Requests for

Admissions1. [ 5.41 In General

The function of requests for admissions is to define and limit thecontroversy between parties to a lawsuit, thus freeing the court and theparties to concentrate on the matters at the heart of the d i~pute .~equestsfor admissions do this in two ways. First, admissions may facilitate proofon issues that cannot be eliminated from the case. For example, althoughthe parties may not agree on the meaning of a particular document, oneparty can use requests for admissions to establish the foundation requiredfor the document to be admitted into evidence.

Second, admissions may narrow the issues by conclusively establishingfacts required to prove some element of the case, thereby eliminating thatelement from the trial. The Wisconsin Supreme Court's holdings in Bankof Two Rivers v. Zimmefl and Schmid Y. Olsen7 establish that admissionsunder section 804.11 may dispose of the entire case.

was adopted from, and is nearly identical to, its counterpart provision in FederalRule of Civil Procedure 36(b) and that, accordingly, the court could look to federallaw for guidance in its analysis of "prejudice" under section 804.1l(2).Michael A.P. v. Solsrud, 178 Wis. 2d 137, 148,502 N.W.2d 918 (Ct. App.1993).Wilson v. ContinentalIns. Cos., 87Wis. 2d3 10,316,274 N.W.2d 679 (1979).Walter L. Harvey, Rules of Civil Procedure, at 394 (Wisconsin Practice Vol.3) (1975).


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Several commentators believe that these functions are not truly withinthe scope of discovery and that requests for admissions are therefore not"true" discovery procedure^.^ The rationale for this position is that theparty seeking the admission already knows the facts or has the documentsand merely seeks an admission that will establish the facts or authenticatethe document^.^ The authors of this chapter, however, believe that thedistinction between requests for admissions and other true discoveryprocedures rests on too narrow a conception of the discovery process.Although most courts continue to distinguish between true discoveryprocedures and requests for admission, the distinction has almost nopractical importance for practicing lawyers. The belief that requests foradmissions are not properly part of discovery has led one federal court tohold that the deadline for service of requests for admissions is not governedby the general discovery cutoff in a scheduling order." A substantialnumber of other courts, however, have treated requests for admissions asbeing subject to discovery cutoff dates." The Eastern District of Wisconsinspecifically requires that requests for admissions be scheduled to allowanswers prior to the deadline.'' Aside from this issue, it should not matterwhether requests for admission are part of discovery or not.

Practice T i p . It would be imprudent for Wisconsin attorneys todelay serving requests for admissions in reliance on Hurt. Attorneysshould anticipate that most judges probably intend that their schedulingorders cover requests to admit, and that judges would likely view a Hurtargument as an attempt by the attorney to avoid the consequences ofhaving missed a court-ordered deadline.Discovery serves two functions in the litigation process. First, it enables

a party to obtain information unknown to that party. This is the literalmeaning of discovery, and is likely the one stressed by the commentatorsand courts who believe that requests for admissions are not true discoveryprocedures.

See, e.g. ,8A CharlesA. Wright et al., Federal Practice and Procedure: Civil2d, at 524 (1994& Supp. 2005) [hereinafter Wright et al.].

Id.; see also Schmid, 111 Wis. 2d at 240 n.1 (Steinmetz, J., dissenting).' O Hurt v. Coyne Cylinder Co ., 124 F.R.D. 614,615 (W.D. Tenn. 1989).l1See Gluck v. Ansett Australia, Ltd. , 204 F.R.D. 217,219 (D.D.C. 2001).l2 E.D. Wis. Civ. L.R. 26.2.

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Second, discovery enables a party to pin its opponent to a certainposition. For example, litigators frequently take depositions not merely tolearn the opponent's narrative version of the underlying facts, but to bindthe opponent to a position that cannot be contradicted at trial without a lossof credibility. Requests for admissions are ideally suited to this purposebecause section 804.1 l(2) mandates that an admission in response to arequest conclusively establishes the fact admitted unless the court permitswithdrawal of the admission at a later date.13 When a request is admitted,no contrary evidence regarding the matter admitted should be allowed intoevidence. A request for admission, once admitted, is a judicial admissionand "[a] judicial admission trumps e~idence."'~ party can change ananswer to an interrogatory or alter an account of the facts testified to at adeposition, but the party cannot so easily evade an admission made undersection 804.11. Alternatively, a party may be intentionally vague orambiguous in answering written interrogatories or deposition questions.Because a properly drawn request for admission focuses on one matter andrequires either an admission or a denial of the truth of the matter, the optionof evasiveness is largely foreclosed. In this sense, requests for admissionsare an essential part of the strategic use of discovery.

The various uses of requests for admissions can be seen by analyzingthe litigation process. As a lawsuit progresses from the filing of acomplaint to trial, the lawyers for all parties are developing their litigationstrategies.I5

l3Micro-Managers, Inc. v. Gregory, 147 Wis. 2 d 50 0,5 11 ,43 4 N.W.2d 97 (Ct.App. 1988); see also Mucek, 2002 WI App 60, 7 31, 252 Wis. 2d 426 ("Thepurpose of the admissions process 'is to expedite trial by establishing certainmaterial facts as true . . . hus narrow ing the range of issues for trial."' (quotingAsea, Znc. v. Southern Pac. Tra mp . Co ., 669 F.2d 1242, 1245 (9th Cir. 198 1))).

l4 Murrey v. United States, 73 F.3d 1448, 145 5 (7th Cir. 1996);see also Kellerv. United ,States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (quoting Michael H.Graham, Federal Practice and Procedure 6726 (interim ed.) (stating that rule 36admissions "have the effect of withdrawing a fac t from contention")).Sections 5.5 to 5.7, infra, illustrate the strategic uses of requests foradmissions in the litigation p rocess.

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2. [ 5.51 Narrowing Issues for TrialParties may include in their complaint or answer any remotely plausible

grounds on which they might prevail, subject to the restraints imposed bysection 802.05. This is particularly true for the affirmative defensesenumerated in section 802.02(3), which are waived if not pleaded in ananswer. The opposing party can often eliminate such claims or defenses byusing requests for admissions.> Practice Tip. Some attorneys who believe that certain allegationsin a complaint or certain affirmative defenses in an answer are withoutmerit follow the practice of propounding contention interrogatoriesdesigned to elicit all facts that support these allegations or affirmativedefenses.I6 What the attorney hopes to accomplish is to lay thegroundwork to strike the allegation or defense. But by using aninterrogatory, the attorney may be reducing the number of interrogato-ries available under a local rule.17 The attorney should consider usingrequests for admissions instead. Such "no liability" requests foradmissions, if denied, can then be followed up with interrogatoriesrequiring the opposing party to state all the facts supporting the denials.

3. [ 5.61 Establishing Undisputed Facts forPurposes of Summary Judgment

Section 802.08 provides that summary judgment "shall be rendered ifthe pleadings, depositions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show that there is no genuine issueas to any material fact and that the moving party is entitled to a judgmentas a matter of law." The party moving for summary judgment shouldtherefore review the pleadings, depositions, answers to interrogatories, andaffidavits to determine what facts, if any, need to be established by theopposing party's admissions in order to satisfy the requirement that therebe no genuine issue as to any material facts.

When a party is moving for a summary judgment, requests for admis-sions can be more effective than other discovery procedures. The oppo-nent's lawyer drafts answers to interrogatories and often will successfully

l6 See supra 5 4.20 (contention interrogatories).l7 See supra 5 4.6 (local rules limiting number of interrogatories).

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However, an attorney might want to consider not submitting such aninterrogatory, and simply moving to have the matter deemed admittedif the opposing party fails to specify what reasonable inquiry wasundertaken.Requests for admissions are also particularly useful in the summary

judgment procedure because the Wisconsin Supreme Court has held thatrequests for admissions may concern a broad range of "facts."

The Judicial Council Committee's Note, 1974, explains that the current statute,Wis. Stat. 8 804.11, unlike the former section 889.22, provides that "the requestneed not be limited to 'fact or facts,' but may seek, when appropriate, opinionsof facts or the application of law to fact.". . . .The rule does not prohibit requests concerning "ultimate facts," nordoes it matter that a plaintiff bears the burden of proof on the issues that herequests the defendants to admit . . . . It is also irrelevant that a request seeksan admission which would be dispositive of the entire case."It is sufficient to note here that a request for admission will not be deemedimproper just because a request deals with the application of law to fact oran "ultimate fact" that disposes of an issue or even an entire lawsuk2'

However, the use of requests for admission may become a trap for theunwary in summary judgment motions that involve multiple-partylitigation, such as third-party claims. A federal appellate court hasaddressed the interplay between applying claims for contingent liability(such as third-party claims, which are premised on the third-party plaintiff'sbeing held liable to the principal plaintiff) and the rules governing requestsfor admission. In Langer v. Monarch Life Insurance C O . , ~ ~principaldefendant argued that admissions it had made under Federal Rule of CivilProcedure 36 in response to a third-party defendant's requests foradmission would not "ripen" until the principal defendant had been foundliable to the principal plaintiff. The principal defendant reasoned that tohold otherwise "would allow every third-party defendant to force adefendant with a liability-over claim to admit defeat against either theplaintiff or the third-party defendant."24

Schmid, 11Wis. 2d at 236; see infra $5.8 (permissible topics ofrequests foradmissions).-

22Micro-Managers, 147 Wis. 2d at 510.23 966 F.2d 786 (3d Cir. 1992)." 66F.2d at 803.

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The Third Circuit disagreed, holding that the primary defendant hadcreated a nonexistent dilemma. If the third-party defendant's request werephrased broadly, e.g., as a request that the principal defendant admit flatlythat it "was not liable" to the plaintiff (thus destroying the basis for theprincipal defendant's liability-over claim), the "proper answer to thatrequest would be to object that the statement could not be admitted ordenied, because the fact of actual liability would still be undetermined. . . .[A principal defendant can] admit only that it believed and had taken thelegal position that it was not liable to [the principal plaintiff] (a legalposition that it might win or lose at The Third Circuit correctlypointed out that such a limited admission would not expose the third-partyplaintiff to a third-party defendant's motion for summary judgment.26

On the other hand, the court pointed out, the mere fact that a third-partyplaintiffs claim is contingent on its own liability to the principal plaintiffshould not shield the third-party plaintiff from the effects of its admissionsconcerning purely factual matters relevant to the third-party defendant'sdefenses to the liability-over claim. In this context, a third-party defendantmay legitimately base its motion for summary judgment on an admission,because "[tlhird-party defendants do not have to wait for the plaintiff tosucceed against the original defendant before filing motions for summaryjudgment .''27

The Langer decision emphasizes that counsel for parties that haveasserted liability-over claims must carefully analyze requests for admissiondirected at the hypothetical nature of liability-over claims, in order toensure that in their zeal to defeat the primary plaintiff's claim, they do notmake admissions that are flatly inconsistent with their own theories ofliability on their liability-over claims. Langer provides a useful road mapfor answering' such requests.

25 Id.26 Id.

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4. [ 5.71 Expediting Admission of Trial ExhibitsRequests for admissions may expedite the trial process by establishing

evidentiary foundations that would consume considerable trial time. Forexample, when a party seeks to introduce business records under thehearsay exception of section 908.03(6), the party would normally berequired to call a foundation witness who could testify that the record wasmade at or about the time of the events reflected, that it was found wheresuch records are normally kept, that the record was kept in the ordinarycourse of business, and that it was the organization's regular practice tomake and keep records like the exhibit sought to be introduced.

The proper foundation for many documents can be established well inadvance of trial by asking in requests for admissions the questions used toestablish evidentiary fo~ndat ions .~~his strategy is particularly usefulwhen a large volume of documents is to be introduced at trial. The courts'desire to expedite the trial process likely will lead them to approve requestsfor admission concerning evidentiary foundations for large document casesover objections that the requests are "overwhelming" or "unduly burden-

Notably, this process may be used even when the documentssought to be admitted belong to an entity other than the party answering therequest. Here, the answering party's duty to make reasonable inquiry iscrucial. As long as the necessary foundational facts are available to theanswering party, the fact that the documents or exhibits are not from theparty's own files will not necessarily permit the answering party to claimlack of knowledge.> Practice Tip. It is not enough to ask an opposing party to admitthat a document is genuine if the attorney's purpose in propounding therequest for admission is to eliminate the need for presenting foundationtestimony. The attorney must make sure that the proper foundationquestions are included in the request.

If the answering party denies the requests, the entity with custody ofthe documents may have to be deposed. If so, the party asking for theadmissions regarding foundation testimony should be able to recover the

- -See Ropfogel v. United States, 138 F.R.D. 579, 584 (D. Kan. 1991)(discussing usefulness of requests for admission in laying foundation for docu-

ments).29 Berry v. Federated Mut. Ins. Co., 110F.R.D. 44 1,442-43 (N.D. Ind. 1986).


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Practice Tip. Attorneys should be aware that the scope ofdiscovery under Federal Rule of Civil Procedure 26(b)(l) is morelimited, relating to any matter that is relevant to the claim or defense ofany party.It is not a sufficient basis for objection that the matter on which an

admission has been requested presents a genuine issue for trial.31 Nor maya party object because the request relates to opinions of fact or theapplication of law to fact.32InMichael A.P. v. S o l ~ r u d ? ~he court refusedto find requests containing terms of art ("general contractor" and "agent")ambiguous because the context in which the words were used in the casenegated any ambiguity. However, requests involving the application of lawto fact may sometimes be more appropriate after other discovery has beencompleted. Commentators have said that the final paragraph of FederalRule of Civil Procedure 36(a) (analogous to section 804.1 l(1)) allows thecourt, if it chooses, to postpone final disposition of such requests until apretrial conference or a designated time before trial.

The use of a request for admission to establish conclusively an ultimateissue involving the application of law to fact has been tested both success-fully and unsuccessfully in Wisconsin. In Schmid, the plaintiff asked thedefendant to admit that the defendant was 70% causally negligent. Thedefendant failed to respond in a timely fashion, and the plaintiff proceededto trial, assuming that the defendant's percentage of causal negligence hadbeen conclusively established by the unanswered request. The trial courtheld that the request was not an appropriate demand, but the supreme courtheld that the request was proper:

The trial judge relieved the defendants from the effect of the admissions,reasoning that the request to admit seventy percent negligence was not anappropriate demand because it ran to the complaint and because the defendantsdenied liability in their answer. This is not the law in Wiscon~in.~~Nevertheless, the supreme court remanded so that the trial court coulddetermine whether withdrawal of the admission would prejudice theplaintiff.

3' Wis. Stat. $ 804.11(l)(b).32 See Wis. Stat. 9 804.11(1)(a).33 178 Wis. 2d 137,149,502 N.W.2d 918 (Ct. App. 1993).34 Schmid,111 Wis. 2d at 235-36.

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In Kettner v. Milwaukee Mutual Insurance Co. 35 the defendant serveda request to admit that "the value of the plaintiff's claim for injuries in thiscase, taking into account his own contributory negligence does not exceed$100,000." The plaintiff admitted the request. Following the admission,the plaintiff's attorney submitted an offer to settle for $90,000. None of thedefendants responded to the offer. The jury's award, after reduction forcontributory negligence, was $158,956.03.

On appeal, the defendant argued that because Schmid v. O l ~ e n ~ ~ndBank of Two Rivers v. Zimme?7 held that section 804.11 permits requestsfor admissions of "ultimate facts," the request for admission could be usedto establish the value of the plaintiff's claim. The court of appeals statedthat Schmid and Bank of Two Rivers both involved "application of a legalconcept to a set of facts, which are fixed in time and susceptible toval~at ion ."~~he value of a claim, the court said, is "inherently variable,being based on a series of factors that constantly change prior to and duringthe The court also reasoned that the request for admission inKettner conflicted with the specific settlement offer provisions of section807.01. The court concluded that "the total value of a personal injury claimis not a matter that a party can truthfully admit or deny under sec.804.1 1 "40

Although the scope of requests involving the application of law to factis quite broad, requests that seek to elicit pure legal conclusions areimpr~per.~' or is it proper to request that party admit that it will notpresent evidence of a certain nature because the purpose of requests for

35 146 Wis.2d 636,638,431 N.W.2d 737 (Ct. App. 1988).

38 Kettner, 146 Wis. 2d at 643.39 Id. at 643-44.

41 Golden Valley Microwave Foods, Znc. v, Weaver Popcorn Co., 130F.R.D.92,96 (N.D. Ind. 1990); cJ: Intertech Res., Inc. v. Vital Signs, Inc., No. 94 C 5758,1996WL 637860 (N.D. Ill. 1996) (holding that requests quoting language fiom theclaims of patent in suit and asking for admissions that various elements in the prioract satisfied the quoted language held proper).mF P I . ~ , ~ ~ ,nn ct2tPnav cwicrnnein~ nnnk-. C'h. 5 Po. 13


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admissions is to narrow issues for trial be establishing facts, not bypredetermining trial strategy:'

C. [ 5.91 Effect of Admissions and Denials1. [ 5.101 Admissions

Perhaps the most significant fact about requests for admissions is that,with very few exceptions, a response that admits the matter requestedconclusively puts that matter to rest.43 The limited situations in which aparty may withdraw or be relieved from the effect of an admission madeunder section 804.11 are discussed in section 5.24, nfra. Here, it issufficient to note that the Wisconsin Supreme Court has recognized thatsection 804.11 "permits the party securing admissions to rely on theirbinding effect."44

This binding effect of an admission under section 804.1 sets requestsfor admissions apart from all other discovery procedures. A party'sanswers to interrogatories, deposition testimony, and statements made indocuments are merely evidentiary admissions-statements admissible byvirtue of their nonhearsay status under section908.01 4)(b). However, theparty who made them is free to explain them away or otherwise contradictthem at trial.

No such alternative protects the party who admits a matter under section804.11. The conclusive nature of the admission should preclude anycontrary evidence concerning that matter. As one federal court has held,evidence inconsistent with an admitted matter simply cannot be consideredby the c0urt.4~ Moreover, "[aln admission that is not withdrawn oramended cannot be rebutted by contrary testimony or ignored by the districtcourt simply because it finds the evidence presented by the party againstwhom the admission operates more credible."46 A response to a request for

42 Howell v. Maytag, Inc., 168 F.R.D. 50 2,504 (M.D. Pa. 1996).43 Wis. Stat. $ 804.1 l(2 ).

45 Shakman v. Democratic Org.,481 F . Supp. 1315,1346 n.35 (N.D. Ill. 1979).46 American Auto. Ass'n v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir.1991).


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admissions is a judicial admission and, as stated in Murrey v. Unitedstate^:^ "a judicial admission trumps evidence." Indeed, a jury finding thatis inconsistent with a matter established through requests for admissionswill be disregarded, and the party will be bound by the facts established inthe party's responses to the requests.48

In Traynor v. Thomas & Betts C o p 4' when affirming the trial court'saward of attorney fees, the appellate court relied on a response to a requestfor admission to find that Thomas& Betts had advanced a position that wasnot substantially justified.

This does not mean, however, that a matter conclusively establishedunder section 804.11 will necessarily be admitted into evidence. Allgeneral objections to the admissibility of evidence-that is, those that donot seek to contradict the admission-may be raised at the trial.'' Forexample, objections that a matter admitted is irrelevant or would deprivea party of the right to cross-examine a key witness would be proper at thetrial, as would an objection that an admission is inadmissible hear~ay.~ 'Admissions that result from a party's failure to respond to requests foradmission are also subject to all pertinent objections to admissibility thatmay be interposed at

P r m t i c e Tip . If a party misses the deadline for responding to arequest for admission, the party's attorney should not wait for the otherside to move for summary judgment. Instead, the attorney should

47 73 F.3d 1448, 1455 (7th Cir. 1996).48 Calhoun v. United States, 591 F.2d 1243, 1246 (9th Cir. 1978).49 2003WI App 38,260 Wis. 2d 345,659 N.W.2d 158.50 Al-Jundi v. Rockefeller, 91 F.R.D. 590,595 (W.D.N.Y. 1981).51 Al-Jundi, 91 F.R.D. at 592 (discussing relevance); Goldman v. Mooney, 24

F.R.D. 279,280 (W.D. Pa. 1959) (discussing opportunity for cross-examination);Tholp Sales Coy. v. Dolese Bros., 453 F. Supp. 196, 202 (W.D. Okla. 1978)(discussing hearsay).52 Walsh v. McCain Foods, Ltd., 81 F.3d 722,726 (7th Cir. 1996).


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immediately move for additional time to respond and for permission towithdraw or amend the deemed ad mis~ions .~~Moreover, the conclusivepresumption applies only if the court does not

permit withdrawal of the admission. Section 804.1 (2) provides that acourt may permit withdrawal of an admission when the presentation of themerits will be subserved by the withdrawal and the party who obtained theadmission fails to satisfy the court that withdrawal will prejudice that partyin maintaining the action on the merits.54 The court stated that "[a] trialcourt's general authority to maintain the orderly and prompt processing ofcases provides authority to deny withdrawal, apart from the two factors inWis. Stat. 9 804.1 1(2)."

Use of admissions against the answering party is limited to the pendingaction in which the requests were pr~pounded .~~he statute precludes theuse of an admission for any other purpose and specifies that an admissionmay not be used against the answering party in any other proceeding.However, any adverse party-not only the party requesting the admission-may rely on an opponent's admis~ions .~~> Query. It remains an open question whether an admission made inone proceeding and having conclusive effect in that proceeding undersection804.11could be offered in another proceeding for impeachmentpurposes or as an evidentiary admission. For example, assume that anumber of different lawsuits have been filed arising out of the samealleged wrongful conduct (e.g., airline crash, drug product liability,securities law violations). If plaintiff A serves a request that thedefendant admits, and in a separate lawsuit plaintiff B serves theidentical request that the defendant denies, may plaintiff B impeach the

'"ee McDowell v. Milwaukee Transp. Servs., No. 96-2370,1997 WL713993(Wis.Ct. App. Nov. 18,1997) (unpublished opinionnot to be cited asprecedent orauthority per section 809.23(3)) (citing with approval trial court's admonition ofnonanswering party for failure to move immediately for relief).54 See Bank of Two Rivers, 112 Wis. 2d at 633; infra 5.24. In Mucek, 2002

WI App 60, 7 35, 252 Wis. 2d 426, which is discussed in detail in section 5.24,infra, the court addressed the meaning of "prejudice," and emphasized thediscretionary nature of a trial court's decision to permit withdrawal of an admissionif the two conditions are met. - -

55 Wis. Stat. 804.11(2).56 Wright et al., supra note 8, 2264.

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defendant by using the defendant's response to plaintiff A's request?Does the word "admission" in the last sentence of section 804.1 l(2)refer only to a conclusive admission? The authors have found no caseson point.

2. [ 5.111 DenialsDenying a request for admission simply leaves the matter upon whichadmission was requested in dispute for trial. Nothing in section 804.11

provides that denials have the same conclusive effect as admissions.The most important practical effect of a denial is that it opens the door

to cost-of-proof sanctions under section 804.12(3). Section 804.12(3)permits a party who proves the genuineness of a document or the truth ofa matter denied by the answering party under section 804.11 to apply foran order forcing the answering party to pay the requesting party "thereasonable expenses incurred in the making of that proof, includingreasonable attorney fees."57 In Michael A.P. v. So l s r~d , 5~he courtextensively discussed both the grounds for awarding cost-of-proofsanctions and the definition of what constitutes reasonable expensesincurred in the proof of the matters denied.59

111. [ 5.121 Sewing Requests for AdmissionsA. [ 5.131 When Requests May Be ServedSection 804.11(l)(a) expressly permits requests for admissions to be

served on the plaintiff any time after the action is commenced, and on anyother party with or after service of the summons and complaint on thatparty. Although a plaintiff may serve requests for admissions with thesummons and complaint, the defendant is not required to respond to any

--57 Wis. Stat. 5 804.12(3).

178 Wis. 2d 137,502 N.W.2d 918 (Ct. App. 1993).59 See Wentland v. American Fam. Mut. Ins. Co., No. 93-3310, 1995 WL271772 (Wis. Ct. App. May 10, 1995) (unpublished opinion not to be cited asprecedent or authority per section 809.23(3)) (upholding trial court's imposition of

sanctions on defendant insurance company for unreasonable denial of insured'snegligence); infra 5 5.22.


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request for admission until 45 days after the summons and complaint havebeen served on that defendant.60 The plaintiff, in contrast, is not protectedby this 45-day period.61

Practice Tip . Section 802.02(1)(a) requires a complaint to containa "short and plain statement of the claim." A complaint containingdetailed evidentiary allegations may be dismissed for violating. hisrule.62 An attorney who is inclined to file a detailed complaint shouldconsider instead serving requests for admissions with the summons andcomplaint. Such requests would seek admission of evidentiary facts andmight request admission of the genuineness of exhibits attached to therequests. By serving such requests, an attorney can obtain detailedadmissions without risking dismissal of the complaint.Section 804.11 does not expressly state the last date upon which

requests for admissions may be served. Courts that follow the provisionsof section 802.10 governing scheduling conferences, regularly provide intheir scheduling orders a date by which all discovery must be completed.Most judges in their scheduling orders also require that discovery devicesprescribing a specific period for response, such as interrogatories andrequests for admissions, must be served by a date that will permit theanswers to be served before the discovery cutoff date. A sample provisionis as follows: "All requests for discovery must be served by a datesufficiently early so that all nonexpert discovery in this case can becompleted no later than December 15,2005." Local rules may also imposedeadlines. Parties should submit requests for admissions well in advanceof any discovery deadline. Note, however, that some courts exemptrequests for admission from the discovery cutoff in a scheduling order onthe grounds that requests for admission are not true discovery devices.63

60Wis. Stat. 3 804.1 l(l)(b).61 See infra 3 5.18.62 See Windsor v. A Fed. Executive Agency;614 F. Supp. 1255 (M.D. Tenn.

1983), affd, 767 F.2d 923 (6th Cir. 1985); cf Fed. R. Civ. P. 8.63 See, e.g., Hurt, 124 F.R.D. at 615. But see Gluck v. Ansett Austrailia, Ltd.,

204F.R.D. 217 (D.D.C. 2001); E.D. Wis. Civ. L.R. 26.2.


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B. [ 5.141 OnWhom Requests May Be ServedSection 804.1 l(l)(a) specifically provides that requests for admissionsmay be served on "any other party." The statute makes no provision forobtaining admissions from nonparties. In this respect, requests foradmissions are like interrogatories, which may be served only on parties,and unlike depositions, which may be used to elicit information fromanyone possessing it.The restriction that requests for admissions may be directed only toparties does not mean, however, that a request for admission cannot pertainto matters known by a nonparty. Section 804.1 l(l)(b) specifically imposesupon the answering party the duty to make a reasonable inquiry intoinformation "known or readily obtainable" to that party that pertains to thesubject matter of the request. Under proper circumstances, his includes theobligation to seek information from third parties.64 However, such "propercircumstances" may be relatively rare. For example, in Diederich v.

Department of the court held that "reasonable inquiry," in thecontext of an organization, means investigation and questioning of any ofthe respondent's officers, employees, and other personnel who might haveinformation that may lead to or constitute a proper response. However, theduty of reasonable inquiry did not obligate the respondent to interviewnonparties or former officers, employees, and other per~onnel.~~othDiederich andDubin v. E.F'. Hutton Group, I ~ c . : ~eld that absent sworndeposition testimony available to the responding party, a party respondingto requests for admissions has no obligation to seek information from anonparty. This principle is likely to be most important in cases in whichthe information necessary for a proper response is known only by a personno longer employed by the respondent organization.

64 Al-Jundi, 91F.R.D. at 593.132P.R.D.614,619 (S.D.N.Y.1990).

66 Id. at 620.67 125F.R.D.372,374-75 (S.D.N.Y.1989).

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C. I 5.151 Number of Requests PermittedSection 804.11 does not limit the number of requests for admissions that

may be served. Similarly, section 804.08 contains no express limitation onthe number of interrogatories that may be served. Nevertheless, manycourts have adopted local rules restricting the use of discovery proceduresas a guard against abusive "paper wars." For example, the Eastern Districtof Wisconsin limits parties to25 interrogatories unless prior court approvalis obtained, although some kinds of interrogatories do not count toward the25-interrogatory limit.68> Practice Tip . Counsel should determine whether local rules limitthe number of requests for admissions. If not, counsel faced with a limiton the number of interrogatories may be able to employ requests foradmissions instead of interrogatories.Notwithstanding the lack of an express numerical limitation on requestsfor admissions, courts will still exercise their inherent power to control

discovery to limit the use of requests for admissions if a party's requestsimpose an intolerable burden or demonstrate bad faith or abuse.69) ractice Tip. Attorneys should use common sense when preparingdiscovery. Local rules dealing with discovery are responses toperceived discovery abuses.70 InMisco, ess than one month after filingthe complaint, the plaintiff served requests for 2,028 admissions,comprising 343 pages. After the plaintiff voluntarily withdrew 580requests, this still left 1,440 requests, comprising 225 pages. Smallwonder that the court found the serving of these 2,028 requests to be"both an abuse of the discovery process and an improper attempt tocircumvent the local district court rule which limited the number ofinterrogatories to thirty."71

The attorney should consider using sets of requests, each setreasonably limited in number. The attorney should always aim not

'* E.D. Wis. Civ. L.R. 33.1.69 Misco, Inc. v. United States Steel COT., 784 F.2d 198, 205-06 (6th Cir.1986).70 See Aaron E. Goodstein & Howard A. Pollack, Playing by the Rules inFederal Court,Milwaukee Law., Winter 1984,at 4.


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merely to be able to defend any allegedly objectionable requests, but tobe able to evoke from the judge a visceral response that the discoveryis reasonable and that the objector is obstructing the discovery pro~ess.7~

D. [ 5.161 Format of RequestsSection 804.1 (l)(b) mandates that "[elach matter of which an

admission is requested shall be separately set forth." This is not just a legalrule but a practice guide. The implicit command of the separatenessrequirement is that counsel must frame requests as narrowly as possible.Careful, concise drafting not only meets the statutory requirements butforces the answering party to focus on one specifically identified fact. Thisprecludes an inability to answer, or an objection on grounds that the requestis vague orcompound, or a response that only part of the matter is true. Asimple, unequivocal request demands a simple, unequivocal resp0nse.7~Asone court succinctly explains the drafter's goal: "A request for anadmission, except in a most unusual circumstance, should be such that itcould be answered yes, no, the answerer does not know, or a very simpledirect explanation given as to why he cannot answer, such as in the case ofprivilege. 74

Framing requests for admissions with this goal in mind may increase thenumber of requests necessary. To preempt an argument by opposingcounsel that the drafter's requests are so numerous as to be burdensome, thedrafting attorney should divide the requests into smaller sets and serve thesmaller sets in reasonably timed waves. More important, if the draftingattorney specifically and unequivocally identifies each matter upon whichadmission is requested, opposing counsel will be hard pressed to argue thatsuch requests, although numerous, constitute an undue or oppressiveburden. In a sense, the "burden" has been assumed by the proponent of the

-72 See also Safeco ofAm. v. Rawstron, 181F.R.D. 441,445-46 (C.D. Cal. 1998)(allowing interrogatoriesthat request the bases for the denials of each of 50 requestsfor admissions essentially transforms each request for admission into an interroga-tory); In re Olympia Holding Cop., 189 B.R. 846,853 (Bank . M.D. Fla. 1995)(holding that use of interrogatories disguised as requests for admission, in attempt

to circumvent rules limiting number of interrogatories, is abuse of discoveryprocess).73Havenjield Cop. v. H & R Block, Znc., 67 F.R.D. 93,97 (W.D. Mo. 1973).74 Johnstone v. Cronlund, 25 F.R.D. 42,46 (E.D. Pa. 1960).


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requests, because the proponent has taken the time necessary to identifyprecisely the matters on which admission is requested.

Courts recognize that specificity and clarity are essential to the effectiveuse of requests for admissions. Noting that a party "drafts complexrequests at his peril," the court inDiederichY5held that a respondent couldlegitimately deny an entire request containing multiple, interdependentissues even if the denial rested solely on a single assertion of fact.However, when requests were capable of being separated into distinctcomponents following a logical or chronological order, theDiederich courtrequired the responding party to deny or admit the separate matters insequence, even though they were contained within a single request.76Diederich emphasized the point that there is no substitute for precisionwhen drafting requests for admissions.

In Michael A.P., the court rejected a responding party's efforts to evadeprecisely drafted requests. The court ruled that a request was not impropersimply because it may have required explanation; instead the courtexpressly recognized that section 804.11 requires answering parties toqualify their responses when necessary. One of the requests asked thedefendant Solsrud to admit that he was "the" general contractor on aproject. Solsrud argued that he was unable to answer the request because

46 77there was more than one general contractor, making him only a generalcontractor. The court said that good faith required Solsrud to have, at thevery least, denied the assertion and explained that there was more than onegeneral contractor and to identify that portion of the project for whichSolsrud was a general c~nt rac tor .~~

Practice Tip. The limited range of permissible responses torequests for admissions (admission, denial, ustified lack of knowledge,or objection)78 llows counsel to control an opponent in ways that aresimply not possible under other discovery procedures. Lawyers shouldnot waste this opportunity by framing requests that are vague, multiple,or confusing. Therefore:

75 132 F.R.D. at 621.76 Id.77 MichaelA.P., 178Wis. d at 149 n.3.78 See infra $8 5.19-.23.

Ch. 5 Pg. 22 O Febmarv2006. StateBar of WisconsinCLERooks


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1 . .Each matter upon which an admission is requested should beidentified in a separate paragraph.2. Requests containing subparts, conjunctives, or multiple assertionsshould be avoided entirely.3. Requests should be so narrow and concise that explanation orqualification is unnece~sary.~~

IV. [ 5.171 Answering Requests for AdmissionsA. [ 5.181 Time Limit and Effect of Failure to AnswerAfter a request for admission has been served, the answering party has

30days to respond.80 A defendant, however, need not serve responses until45 days after service of the summons and complaint upon that defendanL8'If no written answer or objection is served within the prescribed time limit,"[tlhe matter is admitted."82

A lawyer who ignores the time limits of section 804.11 runs riskspotentially fatal to his or her case. Section 804.1 l(2) makes clear that anymatter admitted under section 804.11 s "conclusively established," unlessthe court permits withdrawal or amendment of the admission. Theinterplay of sections 804.1 l(l)(b) and 804.1 l(2) may be devastating to thenonresponding party: failure to answer a request for admission conclu-sively establishes the matter upon which admission was requested.Courts are unlikely to protect a litigant from the consequences of thelitigant's failure to respond to a request for admission, even if the factsadmitted by that litigant's failure to respond dispose of an entire case. InBank of Two Rivers, the Wisconsin Supreme Court followed numerousfederal cases and held that "summary judgment based upon a party'suntimely or incomplete response to a request for admission can beappropriate, since the [answering] party is deemed to have in effect

79 See infra App. 5A (sample requests for admissions).80Wis. Stat. 3 804.1l(l)(b).81 Id.82 Id.


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admitted all material facts contained therein, even though he may havedenied them in his pleading^."^^

The lesson seems clear: regardless of the contents or character ofrequests for admissions, complete failure to respond is never appropriate.For at least three reasons, a party should serve a written response even ifthe party wishes to admit the matters requested. First, a written responsepermits the responding party to maintain control over the scope of theadmission. Some individual requests may require admission or qualifica-tion, and some may not. Failing to provide a written response leaves thedefinition of a request for admission entirely in the hands of its proponent.However, counsel should remember that qualifications or objectionsresponding to requests for admissions must have a good faith basis; anyefforts to evade or subvert reasonable discovery requests are subject tosanctions. Second, if other discovery motions are filed against a party whohas ignored requests for admissions, the party's failure to serve anyresponse may be offered as evidence of its unwillingness to cooperate inthe discovery process. For example, in reversing a trial court's decision toallow the introduction of evidence that contradicted admissions that hadbeen established by a failure to respond to requests, a federal appellatecourt relied on the responding party's "patent disregard" of other discoveryrequests and scheduling orders.84 Third, instead of merely refusing torespond to objectionable or poorly drafted requests for admissions, counselshould always take the opportunity to explain why a request is objection-able or incoherent. It may be too late to raise such arguments in a laterattempt to withdraw the admissions that have resulted from a failure torespond.85

83 Bank of Two Rivers, 112 Wis. 2d a t 630-3 1.84 American Auto. Ass'n, 930 F.2d at 1121.

For a discussion of withdrawal or am endm ent of adm issions, see section5.23,infra.Ch. 5 Pg. 24 O February 2006,State Bar ofWisconsinCLE Books


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B.. 5.191 Format of Response1. [ 5.201 In General

The response to a request for admission must be in writing and must besigned by the party or the party's att~rney.'~ he statute does not specifi-cally state that a party may respond with an admission, but it does set forththe various permissible responses other than an express admission. Theseare: (1) objection, (2)denial, and (3) inability to admit or deny. The localrules for the Eastern District of Wisconsin provide that a response or anobjection to a request for admission must reproduce the request to whichit refer^?^

2. [ 5.211 ObjectionsA party must state the reasons why requests for admissions are

obje~tionable.'~Generalized criticisms are not sufficient." Moreover, 'failure to make objection and present argument concerning supposedlyimproper requests will result in waiver.g0

Several potential grounds for objection are clearly impermissible. Aparty may not object solely because the request deals with a genuine issuefor trial. The party may deny such a request (subject to cost-of-proofsanctions under section 804.12(3)) or set forth reasons why the mattercannot be admitted or denied?'> Practice Tip. If a request for admission deals with a disputeddispositive issue, the request may safely be denied as long as the

86Wis. Stat. 9 804.11(l)(b).87E.D.Wis. Civ. L.R.36.1; see infraApp. 5B (sample response to requests foradmissions).

Wis. Stat. 9 804.11(1)@).89 Moscowitz V . Baird, 10F.R.D.233 (S.D.N.Y. 1950).

See Michael A.P., 178 Wis. 2d at 151 n.5.Wis. Stat. 3 804.1 l(l)(b); see infra 45 5.22-.23.

O Februarv 2006. StateBar ofWisconsin CLEBooks Ch. 5 Pg. 25


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answering party had reasonable grounds to believe, at the time of denial,that the party could prevail at triaLg2Neither may a party object to a request because an admission seeks an

opinion of fact or the application of law to fact. Section 804.11(l)(a)expressly authorizes such requests. In addition, a request that seeks anadmission disposing of the entire case is not for that reason ~bjectionable?~Further, a request is not objectionable because it concerns matters lmownby a third party, rather than by the responding party?4 In this last situation,the appropriate response is to make a reasonable inquiry, then to refuse toadmit or deny if that inquiry does not disclose information sufficient topermit admission or denialY5 If the burden of responding to a request isgreater than the responding party believes it should reasonably have to bear,the party must state specifically what efforts have been made or whyreasonable efforts could be unavailing in obtaining the requisiteknowledge.96However, some decisions have held that a responding party'sobligation to consult nonparties in connection with requests for admissionextends only to a review of the nonparty's sworn deposition te~timony.~'

Objections are appropriate when requests are compound or multiple,thus violating the requirement that "[elach matter of which an admission isrequested shall be separately set forth."98A similar objection may be raisedto vague or ambiguous requests. Both of these objections, however, shouldbe supported by statements specifying how the request is unanswerablebecause it is multiple, or identifying the vague or ambiguous terms.b Practice Tip. There are significant advantages to raising specifi-cally grounded objections to requests for admissions rather thanattempting to sort through confusing requests in order to admit whatever

92 Wis. Stat. 9 804.12(3);Nelson v. L& J Press C o p ,65 Wis. 2d 770,783-84,223 N.W.2d 607 (1974) (refusing to impose cost-of-proof sanctions underpredecessor statute to current section 804.11).

93 Schmid, 111 Wis. 2d at 236.94 Al-Jundi, 91 F.R.D. at 593.95 Id. at 594.96 Id.97 See Diederich, 132 F.R.D. at 620; Dubin, 125 F.R.D:at 375.98 See Wis. Stat. 9 804.11(l)(b).


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truth they may contain. First, an objection gives the requesting party theburden of moving under section 804.1 l(l)(c) for an order determiningthe sufficiency of an objection. Second, the potential consequences ofan unfounded objection are less severe than those of a qualified orlimited admission that cannot be justified. If a court finds that anobjection is unjustified, the court "shall order that an answer beserved."99 If an answer does not comply with the requirements ofsection 804.11 the court may order an amended answer or may orderthat the matter is admitted."' On its face, the statute does not givecourts the power to deem a matter admitted simply because of anunjustifiable objection.A party may also object that a request seeks irrelevant information,

since the scope of all discovery under chapter 804 is limited to matters"relevant to the subject matter involved in the pending action.7101

3. I 5.221 DenialsA denial "shall specifically deny the matter" being denied, andshall fairly meet the substanceof the requested admission, and when good faithrequires that a party qualify an answer or deny only a part of the matter of whichan admission is requested, the party shall specify so much of it as is true andqualify or deny the remainder. o2The federal courts have been hostile to qualified admissions and denials,

and have not hesitated to deem matters admitted when answering partiesprovide equivocal answers. For example, a denial of the accuracy of thematters stated in the request, but not of the "essential truth" of thosematters, has been held to be an admission.lo3 Similarly, a flat refusal toadmit or deny the truth of the matters requested has been held to be an

99 Wis. Stat. 8 804.1 l(I)(c).loo Id.lo' See Wis. Stat. $804.01(2)(a); $ Fed. R. Civ.P.26(b)(l) (limited to mattersrelevant to the claim or defense of any party).lo2 Wis. Stat. 804.11(l)(b).lo3 Havenjield Corp. v. H & R Block, Inc., 67 F.R.D. 93 ,97 (W.D. Mo. 1973).


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admission.104And failure to respond to any particular part of a request hasbeen treated as an admission.'05 There is no reason to believe thatWisconsin courts will be more generous.In Michael A.P., the court of appeals affirmed a cost-of-proof sanctionof $78,131.88, and rejected arguments that it termed "hypertechnical,semantic "Io6 The requesting party had properly served requestsasking the defendant Solsrud to admit, for example, that he was "the"

general contractor on a project. Solsrud argued that he was unable toanswer the request because there was more than one general contractor,making him only "a" general contractor. The court said that good faithrequired Solsrud to have, at the very least, denied the assertion, explainedthat there was more than one general contractor, and identified that portionof the project for which Solsrud was a general co ntra~tor . '~~The court specifically cited the directive in section 804.1 l(l)(b), that"when good faith requires that a party qualify an answer or deny only a part

of the matter.. . he party shall specify so much of it as is true and qualify ordeny the remainder."'08 The court explained that the responding party hadabused the discovery process itself "by using denials to obscure andcomplicate the issues and to mislead" its adversary.10gAt first glance, Michael A.P. appears to be at odds with the federalcourts' hostility to qualified or limited admissions. However, on closeranalysis, Michael A.P. is consistent with those federal cases that reject"disingenuous, hair splitting di~tinctions,""~nd denials that seek to avoid

the "essential truth" of requests,"' as devices for avoiding the admission of

'" Fuhr v. Newfoundland-St. Lawrence Shipping, Ltd., 24 F.R.D. 9, 13(S.D.N.Y. 1959).lo5 United States v . AT&T, 83 P.R.D. 32 3 ,3 33 (D.D.C. 1979).'06 178 Wis. 2d at 150.'07 Id. at 149 n.3.'08 Id. at 149.'09 Id. at 156.'lo Thalheim v . Eberheim, 124 F.R.D. 3 4 ,3 5 @.Conn. 1988).'I ' HavenJield Corp. v. H & R Block, Inc., 67 F.R.D. 93 ,9 7 (W.D. Mo. 1973).

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matters that a party knows to be true.'12 It is fair to say that the determiningfactor in MichaelA.P. was not the technical form of the categorical denials,but the court's displeasure with the fact that, on adverse examination,Solsrud readily admitted the matters he had denied in response to therequests.

Practice Tip. Answering parties must take seriously the demandsof section 804.11(1)@) governing qualified admissions or denials.Generally, answers that begin "Denied, except that . .."or "Admitted,subject to . . ." exemplify the kind of equivocation that results inanswers being deemed admissions. "[A] reviewing court should notpermit a responding party to undermine the efficacy of the rule bycrediting disingenuous, hair-splitting distinctions whose unarticulatedgoal is unfairly to burden an opposing party. 7,113

At least one federal court, however, has refused to allow amendmentor withdrawal of admissions on the grounds that the answering partycould have qualified or conditioned its responses rather than admittedthe matter under assumptions contrary to the basic theory of its oppo-nent's case.l14 The harsh result in Coca-Cola may be attributable to thefact that the answering party's "assumptions" contradicted a priordecision by the court in the case."' Nevertheless, Coca-Cola demon-strates that in some situations qualified admissions or denials may beappropriate. In most cases, however, attorneys should keep in mind thecourts' customary hostility toward qualifications.

Each matter upon which admission is requested should be set forthseparately in the response-even if the requesting party has notfollowed this procedure in the requests. Then, each separate matter thatis true should be admitted. The separate matters remaining, if contested,should be .denied. If the answering party believes that the requestmisstates facts, the best practice is to respond with an outright denial.If the request is so complex or compound that it cannot easily be brokendown into separate matters, the answering party should object on thegrounds that therequest violates the requirement of section 804.1 l(l)@)

112 C MichaelA.P., 178 Wis. 2d at 152-53.113 Thalheim v. Eberheim, 124 F.R.D. 34,35 (D. Conn. 1988) (citing Walsh v.Connecticut Mut. Life Ins. Co., 26 F. Supp. 566,573 (E.D.N.Y. 1939)).114 Coca-Cola Bottling Co. v. Coca Cola Co., 123 F.R.D. 97, 105-06 (D.Del.

1988).See id. at 105.


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that "[elach matter. .. hall be separately set forth." Objecting insteadof attempting to formulate a qualified admission or denial avoids therisk that the response will be deemed an admission.

4. [ 5.231 Statements Alleging Inability to Admit orDeny

An answer alleging a responding party's inability to admit or deny amatter is proper only when the responding party has made a reasonableinquiry and the information known or readily obtainable by that party isinsufficient to enable either an admission or a denial.'16 The mere fact thatthe request concerns information possessed or known by someone otherthan the answering party does not, by itself, constitute an inability to admitor deny. Instead, the answering party must make a reasonable inquiry intothe information held by other parties.

If, after a reasonable inquiry, the answering party remains unable toadmit or deny the matter requested, an answer stating that fact should besupported with reasons detailing why the available information is insuffi-~ i e n t . " ~

The statutory language suggests that it is sufficient simply to state thatreasonable inquiry has been made and has not revealed information tosupport admission or denial. However, some federal courts have held thatadmissions cannot be avoided simply by tracking the language of FederalRule of Civil Procedure 36 in the response, and that more information isrequired."* Since the risk of establishing a binding admission is so high,specificity is the better practice.

Wis. Stat. 5 804.11(l)(b).'I7 AT&T, 83 F.R.D. at 333; United States v. Taylor, 166 F.R.D. 356, 363(M.D.N.C. 1996) ("A party must give reasons for a claimed inability to respond.It is not enough to claim lack of knowledge. A party must show the information isnot reasonably within its power to obtain").'I8 See, e.g .,Asea, Znc. v. Southern Pac. Transp. Co., 669 F.2d 1242,1245-47(9th Cir. 1981); see also Hay & Forage, 132 F.R.D. at 694 ("Rule 36 requires a

detailed explanation for the inability of the respondent to admit or deny a request");Audiotext, 1995 WL 625744, at *2.P h C D n 2n 0 Fehrnaw 3nnh. State Rar of WisconsinCLE Books


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> Practice Tip . Attorneys formulating answers alleging inability toadmit or deny should consider detailing directly in their response thesources consulted, the information obtained from those sources, and thereasons why that information is insufficient to permit outright admissionor denial. A party requesting an admission may, if the party feels thatthe statutory requirements have not been met, move to determine thesufficiency of the answer, to compel a proper response, or to have thematter ordered admitted. The responding party would then have toshow compliance with the requirement of making reasonable inquiryand securing knowledge and information readily obtainable.

C. [ 5.241 Withdrawal or Amendment of AdmissionsAny matter admitted under section 804.11 is conclusively established

unless the court on motion permits withdrawal or amendment of theadmis~ion."~ ourts have considerable discretion over whether to permitwithdrawal or amendment of admissions made under section 804.11 2),butthat discretion must be exercised within the two-step test set forth in thestatute.120 The court may permit withdrawal or amendment when (1) theparty making the admission shows that the presentation of the merits of theaction will be subserved by withdrawal or amendment; and (2) the partywho obtained the admission fails to satisfy the court that withdrawal oramendment will prejudice that party in maintaining the action or defenseon the merits.12'

'I9 Wis. Stat. $ 804.1 l(2).120 See Micro Managers, 147 Wis. 2d at 5 11; see alsoFarrMan & Co. v. MNRozita, 903 F.2d 871,876 (9th Cir. 1990).12' Wis. Stat. 5 804.1 l(2); see Micro-Managers, 147 Wis. 2d at 511;see alsoCoca-Cola Bottling Co., 123 F.R.D. at 102. On appeal, the standard of review isabuse ofdiscretion. Smithv. FarZey, No. 94-1046, 1995WL 216896 (7th Cir. Apr.

11,1995) (unpublished order not to be cited or used as precedent except to supportclaim of res judicata, collateral estoppel, or law of the case in any federal courtwithin circuit per 7th Circuit Rule 53(b)(2)) (also stating that party who obtained

admissions-state bar cle books 2006

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