After taking on a case, reviewing a file, and drafting initial pleadings, it’s often easy to get a sense of what kind of questions to expect in written discovery. Sometimes, however, the questions can throw you for a loop. For example, requests for admissions can include sweeping accusations such as the following: “Admit that [Defendant] encourages its legal counsel to lay resolution of policy holder lawsuits, file frivolous motions, and impede ongoing efforts at discovery.” Or this one: “Admit that [Defendant] knowingly engaged in unfair or deceptive acts that caused damages to Plaintiff.”

Setting aside the fact that the first request not-so-subtly accuses a fellow attorney of serious breaches of ethics, the second one is problematic. No reasonable defendant would admit to a request that would expose it to treble damages; it seems evident that opposing counsel is hoping for a late response and deemed admission. It would be a slam-dunk, right?

Not exactly. Under Texas law, these types of “gotcha” admissions are frowned upon. Requests for admission are intended to streamline trials by “addressing uncontroverted matters or evidentiary ones like the authenticity or admissibility of documents.” Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011) (per curiam). They are not intended to require defendants to wholly concede their defenses. Id. at 632. In addition, when an admission would preclude a party from litigating their case on the merits, admissions that were not timely answered will not be deemed admitted against a party unless there was bad faith or “callous disregard.” Id. at 634.

This is generally true even where one party builds a trial strategy around any deemed admissions; courts are required to set aside deemed admissions absent a showing of “undue prejudice” on the party relying on them. But this is a high bar. The examples of undue prejudice in the case law include instances where are party waited until the day of trial (or even after) to request the withdrawal of deemed admissions. See Watson v. Dallas Ind. Sch. Dist., 135 S.W.3d 208, 215 (Tex. App.—Waco 2004) overruled on other grounds by Univ. of Tex. Med. Branch at Galveston v. Barrett, 159 S.W.3d 631 (Tex. 2005) (per curiam).

So when you are reading through requests that ask you to concede your whole case, take heart and be reassured that the threat of a deemed admission is a hollow one.