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August 10, 2006

If you're like me -- and about 90% of other lawyers -- getting hit with a stack of interrogatories or document requests doesn't exactly elicit the reaction, "Jeez, I've got to drop everything and get the responses out on these!"  Timely responses to discovery are about as common as Jessica Simpson winning at Scrabble.  With one exception:  requests for admissions under Rule 36.  As more than a few lawyers have learned the hard way, requests come with a self-enforcing time limit:  the other side can ask you nasty questions like, "Admit that you were negligent," and if you don't respond within the 28 days allowed by the rule, the request is deemed admitted.

Maybe.  I recently had to do a brief for a lawyer who'd been tardy in filing his responses, and it turns out the law is a bit more forgiving.  Under Rule 36(B), the court can permit withdrawal or amendment of a response (and "amendment" equals a late filing) "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits."

That allows a lot of discretion, and the courts -- especially at the Federal level -- have been quite willing to use it to allow filings out of rule.  I found cases where the responses were allowed after summary judgment had been filed, and in one case where they were allowed after the trial started.  In one, the defendant hadn't gotten around to answering requests that had been filed two years earlier, and the court simply gave him a date to respond to them.  (If you start with the forfeiture case reported at 863 F.Supp. 442, it'll lead you to the others.)

The Ohio courts haven't been quite as willing to absolve untimeliness in responding, especially where the conduct is egregious -- like filing the responses six months after they were due and nine days before trial, as happened in one 1998 case.  The best case here is this one from the 9th District, which held that the trial court's refusal to permit a late filing was an abuse of discretion because of the "basic tenet of Ohio jurisprudence that cases should be decided on their merits."

Love those basic tenets.  They'll get you off the hook eight times out of ten.

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