RFA’S, SANCTIONS AND THE “GOTCHA” EFFECT
June 4, 2012 § Leave a comment
Let’s say you are in the discovery stages of a child support modification case. Along with all of the other, usual discovery you send counsel opposite an MRCP 37 request for admission (RFA) to admit that the attached document is a “true, correct and authentic” copy of the minor child’s medical bills for the period 2008-2012. The bills would document in part the child’s increased expenses over the two years following the divorce. Because you are seeking authentication, you attach only the bills themselves, and not any self-authenticating certificate.
A couple of weeks later, you receive the response: “Denied. Respondent is without sufficient information to determine whether Exhibit A is a true, correct and authentic copy of the document which it purports to be.”
Since opposing counsel would not admit authenticity, you do the heavy lifting to get the documents authenticated at trial, and — a little p.o.’d at the extra work — you then ask the chancellor to impose sanctions, per MRCP 37(c), which states that the judge “shall” impose sanctions for failure to admit, unless the court finds certain factors present. Much to your chagrin, the trial judge overrules your motion, saying ” … the MRE provide procedures for authenticating medical records and entering them into evidence that do not involve the party opposite admitting to them. Further, the court recognizes that [your opposing party] did not prepare the records and is not the custodian.”
The scenario above is what happened in the case of Rhoda v. Weathers, decided by the MSSC on March 8, 2012, which reversed in part the COA’s previous ruling in the case. The MSSC decision is not designated for publication in the permanent reports, and is subject to being withdrawn, so you may not cite it as authority (rehearing was denied May 24, 2012). Chief Justice Waller’s opinion, though, has a thoughtful discussion of the real purpose for and approach of Rule 37 and the provision for sanctions. Here are some excerpts that explain the court’s reasoning:
¶6. A trial court’s decision whether or not to impose sanctions for alleged discovery violations is reviewed for abuse of discretion. Jones v. Jones, 995 So. 2d 706, 711 (Miss. 2008). The trial court’s decision should be affirmed unless a reviewing court has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id. (quoting Cooper v. State Farms Fire & Cas. Co., 568 So. 2d 687, 692 (Miss. 1990)).
¶7. When a party fails to admit a matter or the genuineness of a document that is later proven at trial, the requesting party may move the court to require the other party to pay the reasonable expenses the requesting party incurred in proving the matter or document. M.R.C.P. 37(c). The Rule states that the court “shall” make the order, unless it finds: 1) that the request was objectionable under Rule 36(a); 2) that the admission sought was of no substantial importance; 3) that the party failing to admit had reasonable ground to believe he might prevail on the matter; or 4) that there was other good reason for the failure to admit. M.R.C.P. 37(c).
¶8. The Court of Appeals held that none of the exceptions listed above applied to the requests. Rhoda, 2011 WL 3452121, at *6. The Court characterized Rhoda’s request as requesting that Weathers “admit the genuineness and admissibility of [Rhoda’s] medical records.” Id. However, the Court’s opinion did not specifically address what comprised these “medical records.” In fact, Rhoda requested that Weathers admit to the genuineness and admissibility of medical bills and various prescription receipts. However, the authenticity of these documents and their admissibility into evidence at a civil trial were matters outside of Weathers’s knowledge, thereby making her denials of the requests appropriate and not subject to sanction.
¶9. The purpose of requests for admission under Rule 36 is “to determine which facts are not in dispute.” DeBlanc v. Stancil, 814 So. 2d 796, 802 (Miss. 2002). “It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” Id. ¶10. Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or “other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a “written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11). [Emphasis in bold added]
¶11. Had Rhoda attached proper attestation of the documents’ authenticity when he propounded his requests, then Weathers would have had no good reason to deny the documents’ genuineness and authenticity. However, in his request, Rhoda failed to attach to his medical bills any affidavits or other written declarations by the custodians of these bills, or any other qualified witnesses, attesting to their authenticity. In essence, Rhoda’s requests sought to contravene the Mississippi Rules of Evidence. Rather than properly authenticating his medical bills according to the Rules of Evidence, he attempted to authenticate them by “artifice or happenstance.” As Weathers was neither the custodian of the documents nor a qualified witness, she did not have the requisite information to determine whether the bills were true, correct, and authentic copies of what they purported to be, nor did she have knowledge of how the bills were prepared. Weathers stated as much in her responses to the requests for admission. As such, she had “good reason” for failing to admit to Rhoda’s request. See M.R.C.P. 37(c); 8 Wright & Miller, Federal Practice and Procedure § 2290, 629 n.15 (“Since a statement of reasons why the party is unable truthfully to admit or deny is expressly permitted as a response to a request . . . it would be quite anomalous if a party who has stated valid reasons why this is so should be required to pay his opponent’s expenses.”). Recognizing this, the trial court refused to sanction Weathers for failing to admit to Rhoda’s requests. Under these facts, it cannot be said that the trial court abused its discretion in denying Rhoda’s motion for expenses. See Estate of Bolden ex rel. Bolden v. Williams, 17 So. 3d 1069, 1072 (Miss. 2009) (“A trial court has considerable discretion regarding discovery matters.”).
Some lawyers like to play “gotcha” games in litigation, and MRCP 37’s strict 30-day deadline and punitive provision for sanctions are tailor-made for that approach. Rhoda makes clear, however, that the courts prefer to hew to the true purpose of the rule, which is to help winnow out the facts that are not in dispute, and they reject attempts to escape adjudication of the facts by means of artifice or happenstance.
The Cooper case, cited in Rhoda, above, includes a discussion of the sanctionability of RFA’s addressed to the ultimate issue. In that case, the ultimate issue was whether the fire loss was due to arson. The court said at p. 689:
The larger point being that RFA’s aimed at the ultimate issue are going to be deemed by the court to be ineffective, and you need to be prepared to make your case.
[Thanks to COA Judge Ken Griffis for bringing the Rhoda case to my attention]