United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART AND DENYING IN PART RENEWED
MOTION TO STRIKE AMENDED ANSWERS TO ADMISSIONS (DOC. 128) AND
GRANTING MOTIONS TO DEEM REQUESTS ADMITTED (DOCS. 132,
CLEVERT, JR. U.S. DISTRICT JUDGE
Securities and Exchange Commission has filed a motion against
each defendant seeking to have certain requests for admission
deemed admitted. Meanwhile, Stifel Nicholas filed a renewed
motion to strike portions of the SEC's amended responses
to Stifel's requests for admission.
for admission are governed by Fed.R.Civ.P. 36, which provides
that a party may serve requests for admission regarding the
truth of any nonprivileged matter relevant to a party's
claim or defense. Fed.R.Civ.P. 36(a)(1), 26(b)(1). Requests
for admission should be simple and concise and should not
state half-truths requiring the answering party to qualify
responses. U.S. Fire Ins. Co. v. Bunge N. Am., Inc.,
No. 05-cv-2192-JWL-DJW, 2008 WL 2222022, *5 (D. Kan. 2008).
provides that an answering party may admit the matter, deny
it, or state in detail why it cannot truthfully admit or deny
it. Fed.R.Civ.P. 36(a)(4). However, the rule adds that when
good faith requires that a party qualify an answer or deny
only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest. Id. Further,
the rule allows a party to object. Fed.R.Civ.P.
denial must fairly respond to the substance of the
matter.” Fed.R.Civ.P. 36(a)(4). “It is expected
that denials will be forthright, specific, and
unconditional.” 8B Charles Alan Wright, et al.,
Federal Practice & Procedure § 220 (3d ed.
[i]f the responding party cannot simply admit the matter
stated in the request without some explanation or
qualification, the responding party may admit with
qualification. An admission may require qualification when
the request is ostensibly true, but the responding party
cannot in good faith admit it without some necessary
contextual explanation to remedy any improper inferences.
When good faith requires that a party qualify an answer or
deny only part of a matter, the answer must specify the part
admitted and qualify or deny the rest.
7 James Wm. Moore et al., Moore's Federal
Practice § 36.11[a] (Matthew Bender 3d ed.
2016). “Generally, qualification is permitted if the
statement, although containing some truth, ‘standing
alone out of context of the whole truth . . . convey[s]
unwarranted and unfair inferences.'” Flanders
v. Claydon, 115 F.R.D. 70, 72 (D. Mass. 1987);
accord Caruso v. Coleman Co., No. Civ. A. No.
98-CV-6733, 1995 WL 347003, *1 (E.D. Pa. June 7, 1995)
(stating that if a referenced statement is misquoted or taken
out of context a party should deny the admission or if
necessary qualify it).
responding party may claim lack of knowledge or information
as a reason for failing to admit or deny a request
“only if the party states that it has made 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). However, the respondent's mere
statement that it made a reasonable inquiry is not
necessarily adequate “if the evidence does not show
that the party did, in fact, make a reasonable
inquiry.” Moore et al., supra, §
36.11[d]; see Asea, Inc. v. So. Pac. Transp. Co.,
669 F.2d 1242, 1247 (9th Cir. 1981) (rejecting argument that
a statement that reasonable inquiry was made is sufficient to
comply with the rule and holding that reasonable inquiry must
actually be made); Napolitano v. Synthes USA,
LLC, 297 F.R.D. 194, 198-99 (D. Conn. 2014) (finding
that a response claiming reasonable inquiry must state
specifically what efforts have been made to obtain requisite
knowledge or why reasonable efforts would be
[A] party generally will not be required to make inquiry of a
complete stranger to obtain information. On the other hand,
the reasonable inquiry requirement goes beyond parties to the
suit, and parties have been required to make inquiry of a
person not a party to the action in order to respond to Rule
36 admissions. In this regard, one court has found that a
party must make inquiry of a third party when there is some
identity of interest manifested, such as both being parties
to the litigation, a present or prior relationship of mutual
concerns, or active cooperation in litigation, and when there
is no manifest or potential conflict between the party and
the person of whom inquiry will be made.
Moore et al, supra, § 36.11[d].
responding party may validly object to a request that exceeds
the scope of discovery. Moore et al., supra, §
36.11[c]; Lynn v. Monarch Recovery Mgmt., Inc.,
285 F.R.D. 350, 363 (D. Md. 2012). And a responding party may
object based on vagueness, i.e., when “the respondent
cannot answer because the meaning of the request is
uncertain.” Moore et al, supra, §
36.11[c]; Caruso, 1995 WL 347003, at *5. But
inadmissibility at trial is not a valid objection.
Id. at *7-*8.
party requesting the admission may move for a determination
regarding the sufficiency of the responses. If the response
does not comply with Rule 36, the court may order that the
matter be admitted or that an amended answer be served. Moore
et al., supra, § 36.12, .
Motion by the SEC regarding Stifel's responses (Doc. 132)
moves for an order deeming some of its requests admitted by
Stifel. The requests fall into two general categories: (1)
the authenticity of certain recordings, and (2) statements of
codefendant David Noack, former Stifel employee, allegedly
made to school districts. In response to the motion, Stifel
stipulated to the authenticity of the records “absent
new and unforeseen information coming to light” and to
the statements that Noack, at deposition, confirmed he had
made (totalling twenty-six or so of the approximately fifty
Noack statements in the requests for admission).
contends that because Stifel's stipulation regarding
authenticity of the records is conditioned, the court should
grant the SEC's motion. Regardless, the authenticity
issue is moot. Any “new and unforeseen information
coming to light” would have to be substantial and out
of left field for the court to allow Stifel to escape its
the remaining Noack statements, the court finds Stifel's
responses inadequate. For instance, request 24 of the
SEC's second set of requests asked that Stifel stipulate
to a particular quote being made by Noack at a particular
meeting. Stifel responded:
Objection. Because this request concerns an alleged isolated
statement that was made as part of extended discussions,
Stifel objects to the request as vague, ambiguous and
argumentative in that it does not incorporate the context of
the statement. Subject to its objections, Stifel states that
it is not aware of any current employee who was present for
the meeting identified in this request and who is able to
authenticate the recording. Accordingly, after making
reasonable inquiry, the information known to Stifel or that
it can readily obtain is insufficient to enable it to admit
or deny this request.
(Doc. 133 Ex. E at 13.)
objection fails. Stifel was not asked to admit what the
statement meant or whether it was true, so context is not
required. The request is clear ...