Admissions vs Stipulations - a telemarketing case highlights the difference
- Peter Schneider
- Nov 8, 2024
- 8 min read
Updated: Sep 7
The three common written forms of lawsuit discovery are interrogatories, requests for documents, and requests for admissions (RFAs). The purpose of RFAs are generally to establish the truth of certain facts or the authenticity of documents before a trial so that they you don't waste a lot of time with establishing known or undisputed facts at trial. Federal Rule of Civil Procedure 36 governs them at the federal level.
They are powerful because at the end of the case, the jury will be instructed:
"Evidence [will now be] [was] presented to you in the form of admissions to the truth of certain facts. These admissions were given in writing before the trial, in response to requests that were submitted under established court procedures. You must treat these facts as having been proved." https://www.ce9.uscourts.gov/jury-instructions/node/76
Admissions are not evidence, they establish facts so they are above evidence. They cannot be argued against or rebutted. Stipulations are similar in that the model jury instructions look similar:
"The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that will be read to you]. You must therefore treat these facts as having been proved."https://www.ce9.uscourts.gov/jury-instructions/node/65
If RFAs and stipulations have the same effect, why is one preferred over the other? On the one hand RFAs are easier because FRCP 36 gives a mechanism for obtaining them:
"A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents." FRCP 36
And unlike interrogatories and requests for documents which a party can blow off until compelled to answer, and can give meaningless answers, RFAs have a self enforcement mechanism:
"A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney."
RFAs initially sound very attractive - you can force the other side to respond to them and at trial they treat the admitted facts as having been proved. What's not to love? The achilleas heel of RFAs is they can be withdrawn:
"A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding."
[Do you know the danger in federal court admissions binding both parties???] A judge can let a party withdraw RFAs and you are SOL unless the Judge abuses his/her discretion in doing so and that is a situation to avoid at all costs. A real world example of this played out in Washington State telemarketing lawsuit Barton v. Delfgauw, 3:21-cv-05610, (W.D. Wash., 2021). There the defendants moved to blanket withdraw a slew of admissions.
And plaintiff Nathen Barton responded:
The judge denied the motion:
"Under Rule 36(b), a matter admitted under this rule is conclusively established unless the Court permits the admission to be withdrawn or amended. Subject to Rule 36(e), the Court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the Court is not persuaded that it would prejudice the requesting party maintaining or defending the action on the merits.
Defense's motion to withdraw fails to identify which matter meets the requirements of 36(b). Rather than identify and analyze individual admitted matters that may meet the requirements of 36(b), defendants broadly seek withdrawal of all admissions without the individualized analysis. Defendants' motion on its face, therefore, fails as the Court lacks the ability to analyze whether a matter admitted meets the requirement of 36(b).
The motion as presented is going to be denied because it doesn't give me any actual requests for admissions individualized to see whether they meet the requirements of 36(b) or not."
The defendants lost the motion out of the gate because they didn't do an individualized analysis, but the court didn't say they couldn't just come right back with another, better motion. The judge gave them another bite at the apple, inviting them to do the individualized analysis, which they then did;
And plaintiff Nathen Barton gave a solid response to many of the challenged admissions:
And the judge gave them every single withdrawal they asked for:
When crafting your RFAs, ask yourself if any of yours look like these:
For example, request for admission No. 53 of Dkt. No. 299 asked Defendant Delfgauw to admit “some person or entity was paid or given something of value by you or an entity under your control.” This is simply too vague, fails to “separately set forth” each matter sought to be admitted, and otherwise seeks to improperly substitute discovery processes.
"Requests for admission are not the proper mechanism for resolving disputes concerning the spoliation of evidence."
I've mentioned before, a judge is often time the 12th man on the field, helping one side and withdrawing / not withdrawing RFAs are a great opportunity for the judge to do that. Do your RFAs cover time periods after the acts that lead to your lawsuit? This judge is ruling against Nathen Barton because what he asked about was after the acts in the lawsuit:
Other requests for admission appear to be outside the scope of the issues presented in this lawsuit. For example, requests for admission related to a website called Validform.com. This website appears to have been created after the communications at issue in this lawsuit and admissions sought about this website would not be “for purposes of the pending action.”
What if you are suing someone for your injuries in a car wreck, and later they post to social media that they know it was their fault. You nail that down in admissions and think that issue is in the bag, until your judge says sorry, that Facebook post was after the car accident so I'm withdrawing the admissions you were counting on.
The judge 12th man's again:
"Similarly, several requests for admission are related to text messages that were allegedly sent in November 2021, even though Plaintiff’s amended complaint only discusses communications between April and August 2021."
Decide for yourself - is that the truth? Does the amended complaint, filed on December 31, 2021, only discuss communications between April and August 2021? Because I see
“Even after being personally served this lawsuit, Delfgauw did not prevent further solicitation calls to Barton. For at least four months after Delfgauw was personally served this Lawsuit, Defendants have placed or caused to be placed solicitation calls to Barton.”
According to the Court, the original lawsuit was filed August 23, 2021, and four months after that would be December 23, 2021. So why would the Court say "Plaintiff’s amended complaint only discusses communications between April and August 2021."?
The point of this post is, RFAs are only as strong as the judge enforcing them. Judges hate telemarketing lawsuits and pro-se plaintiff's so this fellow had a headwind not applicable to all, but what happens to one party in a court case can happen to you and it demonstrates why stipulations are superior. The parties in the Barton case filed a set of stipulations.
Many of them were worded a bit loosey-goosey for my tastes, and Nathen Barton filed a motion for summary judgement in part based on the stipulations. Look at the difference in results:
It tied the judges hands:
"Thus, the Court will treat the stipulation as a binding statement of undisputed facts for trial and for the purposes of this motion. The Supreme Court has “long recognized” that litigants “[a]re entitled to have [their] case tried upon the assumption that ... facts, stipulated into the record, were established.” Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 676 (2010) (quoting H. Hackfeld & Co. v. United States, 197 U.S. 442, 447 (1905)). “This entitlement is the bookend to a party's undertaking to be bound by the factual stipulations it submits.” Id. Likewise, the Ninth Circuit has commented that “stipulations of fact, when fairly entered into, are controlling on the participating parties and on the trier of fact without further evidence” (as opposed to stipulations of law, which do not control). Congoleum Indus., Inc. v. Consumer Prod. Safety Comm'n, 602 F.2d 220, 223 (9th Cir. 1979)."
Even though it sure sounds like he didn't want to and is begging for them to come forward with a retraction:
The language of the stipulation appears to have been written by Plaintiff and is one-sided in his favor, yet for whatever reason — be it strategic or lack of proper diligence — Defendants signed-on . . . Those stipulated facts include significant concessions by Defendants and appear one-sided, see infra, yet Defendants have not — to this point — challenged their legitimacy or disavowed them . . . But the parties stipulated that the opt-in provided consent to text messages only for a “specific list of partners” and that “[n]one of the text messages Starter Home or Xanadu sent to (360) 910 1019 was from this specific list of partners.” (Dkt. No. 378 at 2, ¶ 6.) Assuming that to be true, Defendants/Counterclaimants cannot claim they had a representation of consent to send text messages from the non-partner entities to begin with.
A simple retraction won't get the job done. Stipulations are buyers-remorse proof:
“The test regarding the validity of a stipulation is voluntariness.” . . .”[s]tipulations freely and voluntarily entered into in criminal trials are as binding and enforceable as those entered into in civil actions.” . . . “[S]tipulations serve both judicial economy and the convenience of the parties, [and] courts will enforce them absent indications of involuntary or uninformed consent” United States v. Zepeda, 738 F.3d 201, 207 (9th Cir. 2013) . . . “Under federal law, a judicial admission is a statement by a party that, like a stipulation, conclusively establishes a fact without the need for further proof.” Davis v. Pacificsource Health Plans, CV 19-180-M-DWM, 2 (D. Mont. Apr. 9, 2020).
This is a short primer on the strengths and weaknesses of admissions vs stipulations. When possible, get a stipulation. This Nathen Barton telemarketing case is a great vehicle for a number of important legal lessons and I've write a series of articles on it and stipulations.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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