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SCO and IBM Serve Responses to Requests for Admission & a Motion is Mooted
Friday, June 15 2007 @ 11:05 PM EDT

The PACER docket shows three new entries:
1067 - Filed & Entered: 06/13/2007
Notice of Filing
Docket Text: NOTICE OF FILING of Certificate of Service of SCO's Objections and Responses to IBM's Requests for Admissions Sets 2-12 filed by Plaintiff SCO Group. (Boruchow, Sashi)

1068 - Filed & Entered: 06/13/2007
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by International Business Machines Corporation of Responses to Requests for Admission (Sorenson, Amy)

1069 - Filed & Entered: 06/15/2007
Reply Memorandum/Reply to Response to Motion

I notice that IBM called its responses to requests for admissions "responses"; SCO served "objections and responses". But if you look at the documents themselves, you'll see that in fact both sides are objecting to some things, which would be normal. The only difference I see in the Certificates of Service is that IBM seems to have served a lot more requests for admission than SCO. IBM responds to two; SCO to eleven.

The last PACER entry reads: "SCO respectfully submits that the motion has been mooted given that the referenced date of April 30, 2007 referred to in the opening memorandum has passed." What does it mean? I don't know. No one has told me anything. Which is likely what really moots it. I don't know anything.

So it means the same to you as to me, except I'm probably more relieved than you are -- just what the words say, that because no subpoena was served and no deposition was taken, and the deadline has come and gone, the motion is moot. It doesn't, as I understand the way things work, mean it could never come up again, but for now, that is that.

But as for requests for admissions, I can tell you a little about what they are and how they work, so you'll understand what is happening. I've explained this a bit before and you can find examples of what Requests for Admission look like there. But now we'll focus on responding to requests for admission. If you are curious, here are some from an Illinois case, to show you what they look like. Or you oldtimers at Groklaw may remember that IBM filed some in this very case way back in early 2004.

Once fact discovery is done, it's time to narrow the field of what is still contested. The summary judgment motions pare some things away usually, and the purpose of requests for admissions is to do the same -- each side sends the other things like contracts or statements of fact and asks them to admit to their authenticity or truth. Whatever is admitted can't usually later be fought about as to authenticity or whether it's true or not. It is in effect "proven" for the duration of the litigation.

Here's the Rule that explains what requests for admission are and how it all works, Federal Rule of Civil Procedure 36, with a bit of explanation from me interspersed:


Rule 36. Requests for Admission

(a) Request for Admission.

A party may serve upon any other party a written request for the admission, for purposes of the pending action only,

[PJ: This is to make sure that once you admit the truth of something in this litigation, it can't be used in another, separate litigation as established there. This makes sense, if you think about it a minute. For example, on the Illinois page, you will see that a request for admission was: Such and so corporation is a Delaware corporation. Answer: Admitted. But a year later, in another litigation, you can't "prove" that it is a Delaware corporation by this admission. If you could it could be a mess, because the company could have incorporated somewhere else. Caldera did that, if you recall. So it's admitted for the purposes of this litigation only.]

of the truth of any matters within the scope of Rule 26(b)(1) set forth in the

[PJ: You can't ask the other side to admit to something that isn't admissible anyhow. Pro se litigants mess up on this sometimes. You don't have carte blanche to ask anything you feel like. Rule 26(b)(1) defines what is discoverable and hence what you can ask to be admitted or denied: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." There are some other limitations you can read about listed there, but you get the idea. If it is relevant to a claim or a defense of a party, if it will help lead to evidence or is evidence, and it's not privileged (like what you said to your lawyer), it's discoverable. Unlike, say, information about Otis Wilson's ex-wives.]

request 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. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d).

[PJ: So, for example, IBM could send a request for admission that the executed AT&T-IBM agreement from 1985 is authentic. If it did so, it would need to attach a copy so it can't later pull a switch and claim SCO admitted to a document SCO never saw. Or SCO could send a request for admission to IBM that Santa Cruz and IBM entered into an agreement to work on Project Monterey. You can, I'm sure, think of ways to make that a trick question, and lawyers do their level best. Trust me, the lawyers are very, very carefully looking at each request for admission under a microscope and pulling out their Chess Master Moves books, so to speak, to make sure they don't admit to something that looks innocent but could have unintended consequences.]

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 or as the parties may agree to in writing, subject to Rule 29, 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 the party's attorney. 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.

[PJ: So unless there is a ruling or a stipulation otherwise, the default is that you get 30 days to deny or object, or explain why you can't do either, admit or deny, and still be truthful. Reasons have to be provided. Otherwise, lawyers would answer them all, the tricky ones anyway, as "I dunno. Feel free to prove what you can." And the reasons must be signed off on by either the party or the party's attorney. That means an email won't do. If you represent a client you feel might not always be altogether a Boy Scout, you probably want *him* to sign. The court expects you to be honorable, but it sets up these little speed bumps just in case, making sure you know you are responsible for what you sign, so you take it seriously.

If you look at the earlier Objections and Responses to Requests for Admission by IBM, you'll see that SCO asked IBM to admit that AIX is a derivative of Unix System V. Likely IBM saw it as a trick question. So IBM objected like this: "IBM objects to this request for admission on the grounds that it fails to define the terms 'AIX', 'derivative work' or 'Unix System V'. There is more than one potential meaning of these terms, at least in the context of this case, and IBM's response to this request may differ based upon the applicable definition. There is, for example, more than one version and/or release of both AIX and Unix System V. To the extent a response is required pending SCO's definition of these terms, IBM denies this request for admission." As you see, they didn't just say yes or no, and they explained why it couldn't. Perhaps they thought that SCO knows there is more than one way to define these terms, and that if it simply said, 'Admit' SCO would later pick the definition that suited its purposes best and that would be IBM's neck in the noose. As you will recall, SCO has its own unique definition of derivative that is a good deal broader than IBM's definition. But had IBM fallen into that trap, it could have ended up "admitting" to something that could have cost it a great deal. SCO gets E for Effort here. It was a good request for admission; but IBM was too clever to fall into the trap.]

A denial shall fairly meet the substance of the requested admission,

[PJ: See what I mean about speed bumps? Courts have seen it all. So they tell you upfront, don't get too tricky. Don't pretend you thought one poorly chosen word in a sentence means you can pretend you didn't grasp the question and hence answer what you pretend it means.]

and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder.

[PJ: Another speed bump. You can't say you deny the truth of something because one piece isn't quite accurate. You must tell that one piece is off but the rest is true. Some lawyers will do whatever you let them. Their job is to represent and protect the client, after all. But the court has a stake in actually resolving the matter fairly, whether that helps your client or not, so judges and lawyers are not always on the same page.]

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

[PJ: You can't avoid knowing something so as to be able to say, I don't know. You have to tell what you did to try to find out and then say it's not enough for you to be able to say yay or nay. That way the judge can analyze your response, if the other side challenges it, and figure out if *you* are a Boy Scout or not.]

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; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.

[PJ: You can't in other words say you don't have to answer because the request for admission is a matter that will be decided by a jury. You have to try to respond substantively. I'm sure you can see by now from the way the Rule is written that lawyers try hard not to admit a thing. Evah. Yet the courts want to get things narrowed down for trial. So what happens next explains what happens if lawyers get too tricky.]

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 rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

[PJ: So if a party serves a joke of a response, and you think they could do better and are instead playing discovery games, you can bring a motion asking the court to take a look and rule whether it is sufficient or not. Now, the court can do several things, like order the recalcitrant party to try again, or -- the worst penalty -- the court can rule the matter in the request for admission is admitted. Here's a ruling in a case [PDF] where the answers were not sufficient, so the administrative law judge ordered the party to serve better answers within ten days or have the requests for admissions deemed admitted. It's a sanction, and you don't want that to happen to you. But we might see a few games played, judging from past discovery events. So, knowing BS&F like we do, well... like the saying goes, it ain't over 'til it's over.

If the court decides to hold a hearing to figure it all out, it can make the foot-dragging side to pay the expenses that the innocent party endures having to prepare for and show up for and argue at the hearing. Now this may all sound minor to you. But having an important fact deemed admitted can mean your case can go down the drain. Requests for admissions can be very, very tricky. If you answer wrong, it can really hurt you. Here's an article [PDF] that explains that part of it in more detail, although mostly from a NY and California point of view, not federal.]

(b) Effect of Admission.

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission....

So if you admit something, it's no longer in dispute. There is an escape clause in certain narrow circumstances, as there must be, since humans make mistakes and you don't want anything won or lost on a well-meaning mistake by you or your lawyer or if new information surfaces (here's an example where a pro se litigant in Utah failed to respond within 30 days, and the appeals court gave him another shot -- had he been a lawyer, likely he would not have been so fortunate), but in broad strokes, anything admitted is now off the table.

The converse is not true. If you deny a fact, for example, that doesn't settle the matter. And if the other side later proves it is in fact true, you may have a peck of trouble. So you can't just go down the list, Deny, Deny, Deny recklessly. So when lawyers draft their requests for admissions, they are trying to nail the other side. And if they word them right, it can put the other side in a tight spot. If they admit, they can lose the case. If they improperly deny, they can end up sanctioned. Lots of effort goes into drafting requests that leave as little wiggle room as possible.

On the other hand, in real life courts tend to be a little lenient about procedural things. They tip in the direction of getting things settled on the merits. So if you miss a deadline, you might get away with it. But if you wait too long, you might not. The judge will be thinking about what is fair. At some point, you want the parties to have finality as to what the lawyers need to prepare for trial.

So far, the parties in SCO v. IBM have reached two bases in their attempt to work their way around the field. Each has served requests for admissions and each has filed responses and objections. If you see a hearing scheduled, you will know somebody wasn't happy with what they got.

Update: Groklaw member mwexler sent me an example of deemed admissions being reversed by a court. What happened was the Requests for Admissions were attached with the original Petition (this is happening in Texas and that is what they call it there), and the original lawyer simply forgot to write down the date when they were due. He only calendared the date for responding to the Petition. Calendaring means just what it sounds like. Lawyers have systems to keep track of all the dates when things are due. In old fashioned law offices, the lawyer might just have a yearly calendar book that he uses just for that purpose. Nowadays, it's more likely to be digital tracking. But you have to have some system, to try to avoid this kind of problem.

Anyway, to continue the narrative, the party with the lawyer that goofed ended up getting a second lawyer, and he asked the court to let them undo the error, since otherwise all the requests for admission would be deemed admitted. There was still time, he argued, for the other side to respond, and there was no prejudice, and that way the case could be tried on its merits. Like I explained, this is Texas and they give you 50 days in a state case, not 30 which is the default in federal. And it can vary from state to state, as can the reasons you can use to try to undo a mistake like this.

Well, the other side refused to agree, so they had to have a hearing. The upshot? The court undid the mistake but he did make the party that had made the mistake pay for the other side's costs of objecting and going to the hearing. So, like I told you, Requests for Admission that have been deemed admitted can be undone, and sometimes even if it's your lawyer that goofed. Lawyers are human too, and if you are handling a lot of cases, mistakes can sometimes happen. The law isn't like math. It's people. So deciding such things is fact-based, to some extent. To a large extent. This was, to this judge, a simple human error with no bad consequences to the other side. But if it had happened 4 days before trial, it probably would have been a different outcome. Why? Because then the other side wouldn't have time to prepare properly. At some point, you have to let both sides know what the case will be about at trial, with some precision, so they can prepare.

But the point I'm making is that Requests for Admission are more delicate than interrogatories or other discovery tools, where you can get away with more gaming. Here are the documents:

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