Motion for Discovery in K. S. YOAK ENTERPRISES, LLC VS KEITH BROWN| Trellis.Law

On March 18, 2024 a Request,Application was filed involving a dispute between K. S. Yoak Enterprises, Llc, and Brown, Keith, for OTHER TORT in the District Court of Summit County.

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IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

)
K. S. Yoak Enterprises, LLC ) CASE NO.
)
Plaintiff, ) JUDGE
)
vs. )
)
Keith Brown ) Plaintiff’ FIRST SET OF INTERROGATORIES,
) REQUESTS FOR PRODUCTION OF
Defendant. ) DOCUMENTS, AND REQUESTS FOR
) ADMISSIONS PROPOUNDED TO Defendant
)

Pursuant to Rules 26 and 33 of the Ohio Rules of Civil Procedure, Plaintiff hereby serves

the following interrogatories upon Defendant (hereinafter referred to as Defendant), to be

answered under oath within 28 days after service, or within such earlier time period as may be

ordered by the Court.

Pursuant to Rules 26 and 34 of the Ohio Rules of Civil Procedure, Defendant is further

requested to serve a written response to the following requests for production of documents

upon counsel for Plaintiff, and to make available for inspection and copying the specified

documents, within 28 days after service, or within such earlier time period as may be ordered

by the Court.

Pursuant to Rules 26 and 36 of the Ohio Rules of Civil Procedure, Defendant is also asked

to serve written Answer to the following requests for admissions within 28 days of service hereof,

or within such earlier time period as may be ordered by the Court. Defendant is reminded that

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under Rule 36(A)(1), the requests for admissions are deemed admitted unless a written answer or

objection is made within 28 days after service of these requests. Defendant is further reminded

that pursuant to Rule 37(C)(2), if they fail to admit what is requested in the requests for

admissions and Plaintiff later proves the matter(s) to be true, Defendant can be held liable for

Plaintiff’s attorney’s fees incurred in making the proofs.

In construing Ohio’s discovery rules, Ohio courts routinely follow federal case law

construing the federal discovery rules. Insulation Unlimited, Inc. v. Two J’s Properties, Ltd., 95

Ohio Misc.2d 18, 25 (Miami Cty. C.P. 1997) (“Ohio courts have relied on federal discovery cases

for guidance for lack of our own since the Ohio Civil Rules are chiefly patterned after the

Federal Civil Rules”); Jira v. Erie Lackawanna Railroad Co., 263 N.E.2d 789, 792 (Cuyahoga Cty.

C.P. 1970) (“The Ohio rules on discovery are chiefly patterned after the Federal Rules and the

decisions of the Federal Courts with reference thereto provide some guidelines for the Ohio

Courts”). Hence, the federal case law discussed below is instructive.

RULE 34 PROHIBITS DOCUMENT DUMPS

Ohio Civil Rule 34 was patterned after Rule 34 of the Federal Rules of Civil Procedure.

Staff Note, Ohio Civ. R. 34 (1970). Consequently, federal case law interpreting the federal rule is

instructive in interpreting its Ohio counterpart.

Rule 34(B)(2) provides that “[a] party who produces documents for inspection shall, at

its option, produce them as they are kept in the usual course of business or organized and

labeled to correspond with the categories in the request.” Id. The “kept in the usual course of

business” option is one of the most abused discovery devices in the legal profession. Far too

often, lawyers looking to cut corners misuse this device by unloading a haphazard “document

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dump” on the opposing party and then responding to all document requests with rote

boilerplate such as, “see attached documents” or “responsive documents are being produced”

– leaving the requesting party with the burdensome task of ferreting through the document

dump to ascertain which documents are responsive to which particular requests, and whether

there are even any responsive documents at all to particular requests.

A document dump of this nature contravenes Rule 34(B)(2). In Johnson v. Kraft Foods

North America, Inc., 236 F.R.D. 535 (D. Kan. 2006), the plaintiff produced a voluminous amount

of documents, but did not specify which documents related to each specific document request.

Instead, the plaintiff errantly thought he could satisfy Rule 34’s requirements by declaring the

documents were produced as “kept in the usual course of business.” Finding this to be

improper, the court ordered the plaintiff to identify, by bates numbers affixed to the

documents, which documents were responsive to each specific document request:

Defendant complain that Plaintiff responded to the First Request for
Production by stating responsive documents “will be produced” or “have been
produced.” Defendant further complain that Plaintiff has produced
approximately 3,000 pages of documents, yet he has refused to specify which
documents relate to specific document requests. Defendant argue that Plaintiff’s
written responses are insufficient and thus request that the Court order Plaintiff
to identify (by the bates numbers affixed to each document) which documents
Plaintiff contends are responsive to each specific document request.

Plaintiff counters that it was proper to respond to various requests by
stating that “documents have been produced” because the documents that were
produced were provided to Defendant “as they are kept in the usual course of
business.”

Federal Rule of Civil Procedure 34 governs requests for production of
documents. Subsection (b) provides that a party who produces documents for
inspection “shall produce them as they are kept in the usual course of business
or shall organize and label them to correspond with the categories in the
request.” This provision was added to Rule 34(b) to prevent parties from
“deliberately … mix[ing] critical documents with others in the hope of obscuring

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significance.” Thus, the Court must decide, based on the information now
provided by the parties, whether the documents provided by Plaintiff were
produced as they were kept in the usual course of business.

Upon review of the pleadings and exhibits submitted by the parties in
conjunction with this motion, the Court finds no information about the manner
in which the referenced documents were produced; i.e., where these documents
were maintained or who maintained them and whether the documents came
from one single source or file or from multiple sources or files. In short, Plaintiff
fails to provide the Court with any information, let alone evidentiary proof, to
establish that the documents were produced as kept in the ordinary course of
business.

Rule 34 does not explain what it means to produce documents “as they
are kept in the usual course of business.” The Court, however, finds the facts
here very similar to the facts in Cardenas v. Dorel Juvenile Group, Inc. In
Cardenas, this Court held that a party who chooses the Rule 34(b) option to
produce documents as they are kept in the ordinary course of business bears the
burden of showing that the documents were in fact produced in that manner
and that a mere assertion that they were so produced is not sufficient to carry
that burden.

In light of the foregoing, the Court finds that Plaintiff has not met his
burden to establish that he produced these documents “as they are kept in the
usual course of business.” Because Plaintiff did not do so, he should have
organized and labeled them to correspond with the categories in each request,
as required by Rule 34(b). As the documents already have been provided, the
easiest way for Plaintiff to comply with the “organize and label” requirement is
for Plaintiff to identify by bates number which documents are responsive to each
request. To that end, Plaintiff will be ordered to serve amended discovery
responses to those requests that he responded to by referring to “previously
produced” documents, and will be further ordered to identify by bates stamp
number which documents are responsive to which requests.

Johnson, 236 F.R.D. at 540-541. See also Owens-Corning Fiberglass Corp. v. Allstate Ins. Co., 660

N.E.2d 765, 769 (Lucas Cty. C.P. 1993) (overruling party’s objection to Ohio Rule 34 document

request on the ground that it required it to “identify which . . . documents are produced in

response to which requests,” and ordering the party “to label the materials” produced).

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This principle was embraced in Grant v. Target Corp., 281 F.R.D. 299, 312-313 (S.D. Ohio

2012). There, the plaintiff “produced a number of documents to [the defendant],” but “never

indicated which requests these documents were responsive to, making it difficult for

[defendant] and this Court to know to which requests for production of documents [plaintiff]

responded and to which he did not.” Id., 281 F.R.D. at 312. Finding this contravened Rule 34’s

requirements, the court ordering the plaintiff “to organize and label his documents so that each

document corresponds to the categories in the requests.” Id., 281 F.R.D. at 313.

In Graff v. Haverhill North Coke Co., 2013 WL 13078603 (S.D. Ohio Aug. 8, 2011), the

court aptly explained what is really meant by producing documents “as they are kept in the

usual course of business”:

Rule 34 requires the party who produces documents for inspection to
produce them “as they are kept in the usual course of business or … organize
and label them to correspond to the categories in the request.” Fed. R. Civ. P.
34(b)(2)(E)(i). The Rule does not explain what it means to produce documents in
the “usual course of business.” As explained by one court, a party may choose to
produce documents as they are kept in the ordinary course of business in several
ways:

The most obvious means of complying with the requirement of Rule 34(b)
to produce documents as they are kept in the usual course of business is
to permit the requesting party to inspect the documents where they are
maintained, and in the manner in which they are organized by the
producing party. It logically follows that when production occurs by
means other than permitting the demanding party access to the original
records as they are organized and maintained by the responding party,
such as by instead choosing to copy the documents and produce the
duplicates, they must be organized in such a way that the system utilized
by the producing party is replicated; in other words, the documents
should be produced, organized and labeled and, if appropriate, indexed
just as they are maintained by the producing party.

Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 (N.D.N.Y. 2008) (internal
footnote omitted) (citing Johnson v. Kraft Foods North America, Inc., 236 F.R.D.
535, 540-541 (D. Kan. 2006). The “usual course of business” provision of Rule 34

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was intended to prevent the “dumping of massive quantities of documents, with
no indexing or readily apparent organization, in response to a document request
from an adversary”’ and “to prevent parties from ‘deliberately … mix[ing] critical
documents with others in the hope of obscuring significance.’” Pass v. Seymour,
255 F.R.D. at 334 (internal citations omitted). Underlying the “usual course of
business” method of production is the assumption “that production of records as
kept in the usual course of business ordinarily will make their significance
pellucid.” CooperVision Inc. v. Ciba Vision Corp., No. 2:06CV149, 2007 WL
2264848, at *4 (E.D. Tex. Aug. 6, 2007).

The party claiming that documents were produced in the ordinary course
of business bears the burden of showing that the documents were so kept. See
Synventive Molding Solutions, Inc. v. Husky Injection Molding Systems, Inc., 262
F.R.D. 365, 370 (D. Vt. 2009); Consolidated Rail Corp. v. Grand Trunk Western R.R.
Co., No. 1:09-cv-10179, 2009 WL 5151745, at *3 (E.D. Mich. Dec. 18, 2009)
(citation omitted); see also S.E.C. v. Collins & Aikman Corp., 256 F.R.D. 403, 409
(S.D.N.Y. 2009); Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618
(D.Kan. 2005). “To carry this burden, a party must do more than merely
represent to the court and the requesting party that the documents have been
produced as they are maintained.” Pass & Seymour, 255 F.R.D. at 334. The party
producing the documents must provide information about how documents are
organized in the party’s ordinary course of business by revealing “where the
documents were maintained, who maintained them, and whether the
documents came from one single source or file or from multiple sources or files.”
Consolidated Rail Corp., No. 1:09-cv-10179, 2009 WL 5151745, at *3 (citation
omitted); see also Pass & Seymour, 255 F.R.D. at 334; Cardenas, 230 F.R.D. at
618.

Graff, 2013 WL 13078603, at *8.

Further, responding to a document production request by stating “see attached

documents” or the like, when in fact no such responsive documents are included within the

party’s document dump, is an evasive false representation. German v. Micro Electronics, Inc.,

2013 WL 143377, *5 (S.D. Ohio Jan. 11, 2013). If a party has no documents that are responsive

to a given request for production, then he or she should truthfully respond to the request by

stating no such documents exist, so that the requesting party is not burdened with the

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herculean task of searching through the document dump to determine whether there are, in

fact, any documents that are responsive to the request. Id.

In light of the case law construing Rule 34, please be advised that a haphazard

“document dump” accompanied by responses such as “see attached documents” or

“responsive documents are being produced,” coupled with a boilerplate statement that the

documents are being produced “as they are kept in the usual course of business,” is

unacceptable and will be met with efforts to procure Plaintiff’s compliance with Rule 34 by all

available legal means, including seeking Court intervention if necessary. Plaintiff is thus hereby

instructed to ensure that its responses to Plaintiff’s requests for production of documents, and

Plaintiff’s document production itself, are in full compliance with Rule 34(B)(2) to the letter, as

construed by the courts.

DEFENDANT IS REQUIRED TO PRODUCE REQUESTED DOCUMENTS
EVEN THOUGH PLAINTIFF MAY ALSO HAVE SOME OF THEM

The fact that a requesting party may have the documents being requested does not justify

the adverse party in refusing to produce them, and an objection to requests for production on

this ground is spurious.

In Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229 (W.D.N.Y. 1998), a party

objected to a document production request by asserting the information was already in the

requesting party’s possession. Granting the requesting party’s motion to compel production, and

overruling the responding party’s objection, the court held:

Defendant also contend in their Opposition to Plaintiff’s Cross–Motion to
Compel that Defendant need not respond to Plaintiff’s Requests, as the
documents sought in Requests Nos. 5, 6, and 7 are already in the possession of
Plaintiff. Defendant' Opposition at 7. Defendant is incorrect. Unless excused by a
court order, a requested party must provide relevant discovery regardless of

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whether it is already available to the requesting party. Federal Deposit Insurance
Corp. v. Renda, 126 F.R.D. 70, 72 (D.Kan.1989) (defendant’s refusal to produce
documents improper, as Plaintiff are entitled to review those documents which
are in defendant’s control regardless of whether Plaintiff are in possession of
certain documents which they requested from Defendant); Westhemeco v. New
Hampshire Insurance Co., 82 F.R.D. 702, 710 (S.D.N.Y.1979) (plaintiff’s possession
of requested documents does not preclude plaintiff’s request that defendant
identify them, absent a showing of bad faith or harassment).

Id., 181 F.R.D. at 240.

The view espoused in Land Ocean Logistics has been universally embraced. Williams v.

Sweet Home Healthcare, LLC, 2017 WL 2779189, *2 (June 27, 2017) (granting defendant’s motion

to compel, and overruling the plaintiff’s objection based on the fact the defendant also had the

documents, because a party’s possession of the documents is not a bar to the discovery of them

from the adverse party); Milliner v. Mutual Securities, Inc., 2017 WL 6419275, *2 (N.D. Cal. March

24, 2017 (granting the defendant’s motion to compel, and overruling the plaintiff’s objection

asserting the document production requests failed to meet the proportionality requirement of

Rule 26(b)(2) because the vast majority of the documents sought by defendant were in its

possession, since a party is required to produce documents even though the requesting party is

also in possession of them); Gomez v. Tyson Foods, Inc., 2012 WL 3111897, *4 (D. Neb. July 31,

2012) (granting the defendant’s motion to compel production of documents, and overruling

plaintiff’s objection based on the fact the documents were also in defendant’s possession,

because “an objection based on information that the moving party is already in possession of

documents it seeks to obtain by inspection, is an insufficient response to requests for production;

a party is required to produce documents in its possession, custody or control, regardless of

whether it believes the requesting party already has those documents”); Brill v. Napolitano, 2010

WL 11512400, *5 (C.D. Cal. May 12, 2010) (granting the defendant’s motion to compel

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production of documents, and overruling the plaintiff’s objection based on the fact they were

also in defendant’s possession, because a party “is required to produce documents [he] has in

[his] possession, custody or control, regardless of whether [he] believes [defendant] already has

those documents”); Benedict College v. National Credit Systems, Inc., 2009 WL 3839473, *6

(D.S.C. Nov. 16, 2009) (“Further, the fact that the information sought might already be in the

possession of the requesting party or obtainable from another source is not a bar to discovery of

the relevant information”); Del Campo v. American Corrective Counseling Services, 2008 WL

3154754, *2 (N.D. Cal. Aug. 1, 2008) (“Nevertheless, it is not a bar to the discovery of relevant

material that the same material may be in the possession of the requesting party or obtainable

form another source”); Ramsay v. G.C. Evans Sales and Mfg. Co., 196 B.R. 114, 115 (Bkrtcy. E.D.

Ark. 1996) (“Of course, the fact that defendant may already possess the documents is not a

proper response,” and thus “[t]he defendant is entitled to any properly discoverable documents

in the possession or control of the trustee whether or not the defendant already has the

documents”); Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994)

(“Further, it is not a bar to the discovery of relevant material that the same material may be in the

possession of the requesting party or obtainable form another source,” and “[t]hus, the

Defendant must produce the requested documents regardless of their existence in the possession

of Plaintiff or their accessibility through the subcontractors”).

Defendant is expected to produce the documents requested herein, notwithstanding its

belief that Plaintiff may be in possession of some of them as well. Defendant’s failure to do so will

be met with efforts to procure its compliance with these discovery requests by all available legal

means, including seeking Court intervention if necessary.

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THE LAW APPLICABLE TO ANSWER TO ADMISSIONS

Ohio Civil Rule 36 was patterned after Rule 36 of the Federal Rules of Civil Procedure.

Staff Note, Ohio Civ. R. 36 (1970). Consequently, federal case law interpreting the federal rule is

instructive in interpreting its Ohio counterpart.

In an effort to avoid having to face, and to admit, the truth, lawyers and their clients

routinely provide evasive, incomplete responses and boilerplate, bogus objections to requests

for admissions. On account of this pervasive reality, Defendant and its counsel are reminded of

the following standard governing requests for admissions:

Rule 36(a) details the four acceptable Answer to Requests for Admission.
Fed.R.Civ.P. 36(a)(4)-(a)(5). The responding party may: 1) admit; 2) deny; 3)
assert a lack of knowledge, despite reasonable inquiries to obtain such
knowledge; or 4) object. Id. “If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party cannot truthfully
admit or deny it.” Fed.R.Civ.P. 36(a)(4) (emphasis added). Further, all denials
“must fairly respond to the substance of the matter.” Id. When a party wishes to
object to a request for admission, it must state the grounds for objection.
Fed.R.Civ.P. 36(a)(5). “The purpose of Rule 36(a) is to expedite trial by
establishing certain material facts as true and thus narrowing the range of issues
for trial.” Asea, Inc. v. Southern Pac. Transp. Co., 699 F.2d 1242, 1245 (9th
Cir.1981). Efforts to circumvent the purpose of Rule 36(a) through evasive
denials or incomplete responses to admissions frustrates judicial economy and
may result in Rule 37 sanctions. See Fed.R.Civ.P. 37(c).

Old Reliable Wholesale, Inc., 2008 WL 2323777, *1 (N.D. Ohio June 4, 2008) (emphasis in

original). See also Hammock v. Rogers, 2018 WL 3374053, *1 (N.D. Ohio July 10, 2018).

In responding to requests for admissions, lawyers and their clients should keep in mind

that “[p]arties may not view requests for admission as a mere procedural exercise requiring

minimally acceptable conduct. They should focus on the goal of the Rules, full and efficient

discovery, not evasion and word play.” Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th

Cir. 1994). “And to aid the quest for relevant information, parties should not seek to evade

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disclosure by quibbling and objection. They should admit to the fullest extent possible, and

explain in detail why other portions of a request may not be admitted.” Id., 22 F.3d at 938.

Unfortunately, these principles are routinely flouted by lawyers.

For example, in furtherance of their efforts to run and hide from the truth, parties

typically avoid properly answering a request for admission by objecting on the ground the

request calls for a “legal conclusion,” despite the fact the request does not actually involve a

pure matter of law but, instead, relates to facts, the application of law to fact, or opinions

about either. Such an objection is improper:

Fed.R.Civ.P. 36(a) provides that 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.” RFAs that involve pure matters of law are improper.
[Citations omitted.]

WM Healthcare objects on the basis that the Requests use “terms with
‘legal significance’ or call for a ‘legal conclusion’” and are improper. (Doc. 23 at
7). The Court disagrees.

Rule 36 was amended in 1970 to include “the application of law to fact,”
thereby eliminating the requirement that the matters sought to be admitted be
“of fact.” Fed.R.Civ.P. 36, Advisory Committee Notes, 1970 Amendment.
Requests No. 1 and No. 4 seek the application of law to the specific facts of the
case, or opinions about the same, and are proper Requests for Admission….

Michel v. WM Healthcare Solutions, Inc., 2011 WL 6056728 (S.D. Ohio Sept. 8, 2011), adopted,

2011 WL 6056883, (S.D. Ohio Dec. 6, 2011). The bottom line is that “Rule 36 permits one party

to request another party to admit facts relating to a broad range of matters, including ultimate

facts and the application of law to fact.” Hammock v. Rogers, supra, at *1.

Another abusive truth-hiding tactic parties use to evade a request for admission is to

declare lack of knowledge or information regarding the request’s subject matter. This is

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inappropriate unless the party has actually made an effort to obtain information that will

enable it to admit or deny the request. Ohio Civ. R. 36(A)(2).

Pursuant to Civ.R. 36, an answer must specifically deny each matter of
which an admission is requested or detail the reasons why such matter cannot
be admitted or denied truthfully. Lack of information or knowledge cannot be
given as a reason for failure to admit or deny unless the answering party states
that he has made reasonable inquiry and that information known or readily
obtainable by him is insufficient to enable him to admit or deny. The party
requesting the admissions may move for an order with respect to the Answer or
objections. If the court determines that an answer does not comply with the
requirements of Civil Rule 36, it may order that the matter is admitted. Civ.R.
36(A)(2) and (3).

* * *

Our review reflects that CCI’s admission response failed to comply with
Civ.R. 36 because it did not “set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter.” See Civ.R. 36(A)(2). “Failure to
incorporate in the response the language mandated by Civ.R. 36 and failure to
detail in writing both the actual effort made and the reasons why the known
information is insufficient to enable the responding party to admit or deny will
result in an admission.” St. Paul Fire & Marine Ins. Co. v. Battle (1975), 44 Ohio
App.2d 261, 270, 337 N.E.2d 806; Stephens v. City of Cleveland (Feb. 1, 1990),
Cuyahoga App. No. 56419. Accordingly, the trial court properly deemed the
matters admitted. . . .

Cleveland Construction, Inc. v. Roetzel & Andress, LPA, 8th Dist. App. No. 94973, 2011-Ohio

1237, ¶¶45, 47, app. denied, 129 Ohio St. 3d 1451 (2011). See also LVNV Funding, LLC v.

Kaminsky, 10th Dist. App. No. 10AP-1141, 2011-Ohio-3085, ¶15; Equitable Life Assurance Society

of the U.S. v. Kuss Corp., 17 Ohio App.3d 136, 139 (3rd Dist. App. 1984).

The answering party may assert lack of knowledge or information as a
reason for failing to admit or deny only if the party states that it has made a
reasonable inquiry and that the information it knows or can readily obtain is
insufficient to enable it to admit or deny.” Fed.R.Civ.P. 36(a)(4). This requirement
is not merely a semantic exercise; the answering party must actually make a
“reasonable inquiry” prior to asserting lack of knowledge. Stark–Romero v.
National R.R. Passenger Co., 275 F.R.D. 551, 556 (D.N.M.2011)….

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Piskura v. Taser International, 2011 WL 6130814, *2 (S.D. Ohio Nov. 7, 2011), adopted, 2011 WL

6122756 (S.D. Ohio Dec. 8, 2011). See also Norris v. First Federal Savings and Loan of Lorain,

2012 WL 1565602, *2 (Bkrtcy. N.D. Ohio May 2, 2012)

“Therefore, ‘an answering party must conduct a reasonable inquiry and answer a

[request to admit] if the information is readily obtainable, even though the answering party has

no personal knowledge of the facts.’” Little Hocking Water Association v. E.I. Du Pont de

Nemours, 2013 WL 1791083, *2 (S.D. Ohio April 26, 2013) (quoting Drutis v. Rand McNally &

Co., 236 F.R.D. 325, 331 (E.D. Ky. 2006)). Further, if after conducting a reasonable inquiry the

responding party still is unable to admit or deny a request for admission, it “must ‘set forth in

detail’ the reasons why it cannot answer.” Kelly v. Montgomery Lynch & Associates, Inc., 2007

WL 4412572, *2 (S.D. Ohio Dec. 13, 2007) (quoting Rule 36).

Several other principles, routinely disregarded by parties attempting to avoid the truth,

also govern Answer and objections to requests for admissions:

• “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.” Ohio Civ. R. 36(A)(2).

• “A denial shall fairly meet the substance of the requested admission, and when
good faith requires that a party qualify his or her 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.” Ohio Civ. R. 36(A)(2). In other
words: “On the other hand, if a request for admission contains several assertions
of fact, a general denial will seldom meet the substance of the request; only in
that rare case when every fact asserted is false will a general denial meet the
test of Civ.R. 36(A). Under the Civil Rule, if some of the facts asserted are true,
those facts must be admitted, and a general denial would not do this. Only a
qualified denial, that is, one that contains an explanation as to what facts are
admitted and what facts are denied, meets the test of the Civil Rule.” Buckeye
Union Ins. Co. v. Regional Transit Authority, 471 N.E.2d 885, 888-889 (Cleveland
Mun. Ct. 1983) (emphasis in original).

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• “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 Civ.R. 37(C), deny the matter
or set forth reasons why the party cannot admit or deny it.” Ohio Civ. R. 36(A)(2).
In other words: “Failure to answer is not excused because the matters requested
to be admitted are central to the case or must be proven by the requesting party
at trial.” L.E. Sommer Kidron, Inc. v. Kohler, 9th Dist. App. No. 06CA0004, 2007-
Ohio-885, ¶45, app. denied, 114 Ohio St. 3d 1508 (2007).

• Answer or denials to requests for admissions “must be forthright, specific, and
unqualified,” and qualifying an answer to make it non-responsive is
impermissible. Old Reliable Wholesale, supra, 2008 WL 2323777 at *2; Norris v.
First Federal Savings and Loan of Lorain, supra, at *2; Henson v. General Motors,
LLC, 2014 WL 11515721, *1 (N.D. Tex. Dec. 22, 2014) (“Further, denials to
requests for admission should not be made vague and evasive by the addition of
qualifying language”).

• The use of evasive language that neither admits nor denies a request for
admission is improper. Old Reliable Wholesale, 2008 WL 2323777 at *2.

• Lodging a boilerplate “vague and ambiguous” objection to a request for
admission is improper. Old Reliable Wholesale, 2008 WL 2323777 at *1.

• “Admitting what was not requested in an effort to dodge the request creates
confusion and frustration during the discovery process, and leads to needless
Court intervention.” Old Reliable Wholesale, 2008 WL 2323777 at *2.

• It is impermissible to state, in response to a request to admit the contents of a
document, that the document “speaks for itself.” Little Hocking Water
Association, supra, 2013 WL 1791083, at *6.

• Rule 36 “does not authorize a respondent to evade the request for admission
with an answer to some imaginary, collateral question.” Deya v. Hiawatha
Hospital Association, Inc., 2011 WL 1559422, *3 (D. Kan. April 25, 2011).

• Accompanying a denial to a request for admission with an explanation that is
based on facts unrelated to the substance of the request is improper. Kelatron v.
Marlyn Nutraceuticals, 2013 WL 4498722, *3-*4 (D. Utah Aug. 21, 2013).

• “The phrase ‘denied as written,’ without additional elaboration, is evasive, and is
tantamount to a failure to answer.” Lynn v. Monarch Recovery Management,
Inc., 285 F.R.D. 350, 368 (D. Md. 2012). See also Janko v. Fresh Market, Inc., 2015
WL 4714928, *5 (M.D. La. Aug. 5, 2015).

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• Objecting to a request for admission because it “assumes facts not in evidence”
is improper. Janko, supra, at *5.

• Courts should not “allow the responding party to make hair-splitting distinctions
that frustrate the purpose of the request.” State Farm Mutual Auto Ins. Co. v.
Cordua, 2010 WL 1223588, *2 (E.D. Pa. March 29, 2010).

• “A request to admit is meant to test the knowledge of the party to which it is
directed. An answering party cannot deny a request to admit on the grounds
that the requesting party cannot prove the factual matter in the request. Cf.
Havenfield Corp. v. H&R Block, Inc., 67 F.R.D. 93, 97 (W.D. Mo. 1973) (deeming
requests for admission admitted when responding party’s Answer were evasive
and focused on the accuracy of the requests rather than on the truth of the
matters set forth therein).” Fazal v. Advanced Tabco, 2010 WL 4363376, *2 (E.D.
Wis. Oct. 22, 2010).

In House v. Giant of Maryland LLC, 232 F.R.D. 257 (E.D. Va. 2005), the court aptly

summarized these principles:

Defendant’ Answer reflect folklore within the bar which holds that
requests for admission need not be answered if the subject matter of the
request “is within plaintiff’s own knowledge,” “invades the province of the jury,”
“addresses a subject for expert testimony,” or “presents a genuine issue for
trial.” A favorite excuse for not answering requests for admission in a contract
case is that “the document speaks for itself.” It is common practice to deflect
requests to admit the genuineness of documents with Answer such as “my client
is not the custodian of this record.” The folklore further holds that a litigant will
always have the chance to amend his answer before sanctions can be imposed.
As the authorities set forth in this Opinion demonstrate, the folklore is wrong.

The party to whom requests for admission are propounded acts at his
own peril when answering or objecting. Gamesmanship in the form of non-
responsive Answer, vague promises of a future response, or quibbling objections
can result in the request being deemed admitted or in a post-trial award of
monetary sanctions without prior opportunity to correct the deficiency.
Therefore, the only safe course of action for counsel is to adhere to the plain
language of Rule 36(a), to wit:

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 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
15

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remainder. 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.

(Emphasis added). If the responding party is not sure whether to admit or deny,
he must make “reasonable inquiry” into the subject matter of the request and
state in his answer the steps taken to satisfy this obligation. Kutner Buick, Inc. v.
Crum & Foster Corp., No. 95–1268, 1995 WL 508175, at *1, 1995 U.S. Dist. LEXIS
12524, at *6 (E.D.Pa. Aug. 24, 1995). If the responding party finds the wording of
a request for admission imprecise, he should set forth a qualified answer that
fairly meets the substance of the request. Id.; Milgram Food Stores, Inc. v. United
States, 558 F.Supp. 629, 636 (W.D.Mo.1983). Requests for admission are not
games of “Battleship” in which the propounding party must guess the precise
language coordinates that the responding party deems answerable.

House, 232 F.R.D. at 262 (emphasis in original).

In light of the applicable case law construing Rule 36, Defendant’s failure to properly

respond to Plaintiff’s requests for admissions will be met with efforts to procure Defendant’s

compliance with rule 36 by all available legal means, including seeking court intervention if

necessary. Plaintiff is thus hereby instructed to ensure that Defendant’s Answer to Plaintiff’s

requests for admissions are in full compliance with Rule 36 to the letter, as construed by the

courts.

INSTRUCTIONS AND DEFINITIONS

Prior to answering these discovery requests, Defendant is requested to search all

records, documents, papers, and electronic information storage systems and to review all

information in his possession or control or within the possession or control of his attorneys.

It is understood that these interrogatories are continuing in nature and that if,

subsequent to serving their Answer, Defendant discovers additional matter that was not

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included in their original Answer, Defendant is under a continuing duty to promptly supplement

their original Answer.

As used herein, “Complaint” is meant to refer to the Complaint that was filed by Plaintiff

in this action.

“Defendant,” “you”, “your”, and “yours” shall be construed to mean any and all

Defendants in this lawsuit, and/or his attorneys, agents or other representatives of his or his

attorneys in this action.

As used herein, the s

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