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"Our RFAs will blot out the sun!" Possessed Photography, Unsplash

I have a feeling that, when the question of "how many RFAs can we serve if there is no limit" comes up going forward, we are all going to remember this case.

In FG SRC LLC v. Xilinx, Inc., C.A. No. 20-601-WCB (D. Del.), plaintiff apparently served 23,688 RFAs on the defendant, each one requesting an admission that a document produced by the defendant was authentic.

You may be thinking "Was this all in one set of RFAs?? Did they type this all out?!?" and it appears that the answer is "yes." According to the Court, the plaintiff served a "3,604-page document entitled 'First Requests for Admission of Authenticity.'" That's 9.1 RFAs per page.

I have to imagine they used a computer script or something similar to draft these. I hope they didn't condemn a poor associate or paralegal to their office for a week to type these out.

In any case, the defendant—shockingly!—objected that having to respond to 23,668 individual RFAs was "abusive, unreasonable, and oppressive." Judge Bryson basically agreed:

When asked to research whether there have been any cases in which a court has authorized a party to demand admissions of authenticity with regard to more than 2,000 documents, SRC was unable to come up with any such cases. Nor have I discovered any. Yet the number of documents for which SRC has demanded that Xilinx admit authenticity is more than an order of magnitude greater than the highest number authorized in any previous reported case. . . . While the objective of seeking to narrow the issues by obviating authentication disputes at trial is laudable, serving an RFA for the entire production of documents by Xilinx at this early stage of the proceedings is unjustifiably burdensome. Accordingly, I will direct that Xilinx need not respond to the current RFAs.

He instead ordered that the parties could serve RFAs regarding authenticity of documents that actually make it to the parties' trial exhibit lists—which should be a much smaller number:

[W]hen the parties have developed their final exhibit lists, SRC will be permitted to serve revised RFAs on Xilinx seeking authentication of those materials produced by Xilinx that are on SRC’s exhibit list. . . . The same applies to materials produced by SRC that are on Xilinx’s exhibit list. The court’s procedures for reviewing the parties’ exhibit lists prior to trial will ensure that the number of exhibits on those exhibit lists will be reasonable.

Court Notes That RFAs Are "a Trial Management Tool," Rather Than a Discovery Tool

Judge Bryson also took the opportunity to set forth the purpose of Rule 36 and RFAs:

It is well settled that Rule 36 [which provides for RFAs] is not a discovery rule as such, but instead is a trial management tool. As the Third Circuit has noted, “[t]he purpose of Rule 36(a) is to narrow the issues for trial to those which are genuinely contested.” United Coal Cos. v. Power Const. Co., 839 F.2d 958, 967 (3d Cir. 1988); see also Iron Workers Loc. No. 60 Annuity Pension Fund. v. Solvay Iron Works, Inc., No. 5:15-CV-0054, 2017 WL 1458772, at *3 (N.D.N.Y. April 24, 2017) (“RFAs are not discovery tools, but rather serve to narrow or reduce the issues for trial.”); T. Rowe Price Small-Cap Fund v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997) (“Rule 36 is not a discovery device. The purpose of the rule is to reduce the costs of litigation by eliminating the necessity of providing facts that are not in substantial dispute, to narrow the scope of disputed issues, and to facilitate the presentation of cases to the trier of fact.”); Diederich v. Dep’t of the Army, 132 F.R.D. 614, 616 (S.D.N.Y. 1990) (“[T]he purpose of Requests for Admission[] is not necessarily to obtain information but to narrow issues for trial.”).

Given that RFAs are about limiting the disputes at trial, rather than discovery facts, Judge Bryson noted that they may not need to be served before the fact discovery cutoff—but did not decide the issue here:

[Plaintiff] SRC explained during the telephonic hearing that it served its RFAs when it did because of concern that the service of RFAs would not be permitted after the cutoff for fact discovery. As SRC noted, there is a division among district courts as to whether requests for admission are subject to fact discovery deadlines. See generally Wyles v. Sussman, 445 F. Supp. 3d 751, 75657 (C.D. Cal. 2020); Joseph L. v. Conn. Dep’t of Children & Families, 225 F.R.D. 400, 402–03 (D. Conn. 2005) (citing cases); compare O’Neill v. Medad, 166 F.R.D. 19, 21 (E.D. Mich. 1996)(“[R]equests for admission are distinct from other general discovery devices and are not subject to discovery cutoff dates.”), with Gluck v. Ansett Austl. Ltd., 204 F.R.D. 217, 219 (D.D.C. 2001) (RFAs are subject to discovery cutoff dates). Although fact discovery in this case is set to close on October 3, 2022, as part of the resolution of this dispute I advised the parties that I will not treat the requests for admission regarding authenticity as being governed by that deadline.

That's a good point, and parties sometimes agree to permit authenticity RFAs for that reason (or otherwise stipulate to the authenticity of some or all trial exhibits). But obviously, as the Court recognized, no one is going to want to do that for every document in a production.

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