Requests for Admissions and Cost of Proof
As outlined in our article about protective orders, a legal team may attempt to abuse the discovery process in order to pressure the opposition into settling. This strategy involves overcomplicating the discovery stage of a lawsuit in order to increase the opponent’s legal fees. This is often the case when a business knows that whoever is on the other side of the lawsuit cannot afford a drawn out case. Luckily there are safeguards in place to prevent such abuse.
Requests for Admissions (RFAS)
RFAs are a series of questions submitted by your lawyer that the answering party must either: 1) admit, 2) deny, 3) admit in part, 4) deny in part, or 5) explain why it is unable to answer. The opposing party has the right to object to the RFA completely, however this is not viewed by the courts. If the questions are not answered, it can be considered that the admissions are true. The answering party might even lie when answering these questions. If this occurs, the asking party, or “Propounding Party” is given the opportunity to prove that they are being untruthful and that the question should have been admitted as true. This can be proven by hiring a forensic investigator to review financial statements, speaking to people who can testify that the statement is true, or hiring a private investigator to find evidence. Unfortunately, all these methods will accrue additional costs for the Propounding Party.
Cost of Proof Sanctions
Discovery sanctions are not extremely common, but they do occur. They are increasingly likely according to how outrageous the opponent’s lies are. In order to win a financial sanction you must be able to show a detailed and exact account of what you paid in the RFA process, including forensics and investigators, witness fees, and attorney’s fees. Unfortunately, sanctions are not always awarded in monetary value. They may result in a evidentiary ruling against the offending party, which can limit or exclude certain evidence at trial. This in some instances may be worth more than the dollar value of a Cost of Proof Sanction.