Anwar et al v. Fairfield Greenwich Limited et al

Filing 1064

ENDORSED LETTER addressed to Judge Victor Marrero from Richard E. Brodsky dated 2/28/2013 re: am counsel for the Maridom Plaintiffs and am writing as Liaison Counsel for the Standard Chartered Plaintiffs' Steering Committee.This letter requests a conference to determine if, as the Standard Chartered Defendants contend, the Standard Chartered Plaintiffs' recently submitted Requests for Admission need not be answered solely because the deadline for discovery had passed when they were submitted. ENDORSEMENT: The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by Standard Chartered Plaintiffs. (Signed by Judge Victor Marrero on 3/1/2013) (djc)

THE BRODSKY LAW FIRM,

PL

February 28, 2013

VIA OVERNIGHT DELIVERY
The Hon. Victor Marrero
United States Magistrate Judge
Daniel Patrick Moynihan United States Courthouse
- --.-"" ....
.. --.-. ..
...-.......
..

500 Pearl Street·r'-~·~.:·:·-::-:-·"--;-;·
New York, New York 1 0 0 0 7 - 1 3 1 2 " f 1 )~)C SDN)
•.
II)OC{J~i E~~ I"
,; U ECTRO:\lCAl.LY IIU'~D
Re: Anwar. v. Fairfield Greenwich
No. 09-cv-118 (S.D.N.Y.)
';:IOC#: ____
!
I
__
Standard Chartered Cases
ofF
I:})' , ' / J · A ·
~
; \ . 1:11 _..... ~ -h/.-,.-...·.c~·
..

~~~,-.;

~

~~~.-'.~.-

'---.~.-

I

III)'

~~~~

Dear Judge Marrero:

=­

~==±===~

I am counsel for the Maridom Plaintiffs and am writing as Liaison
Counsel for the Standard Chartered Plaintiffs' Steering Committee.
This letter requests a conference to determine if, as the Standard
Chartered Defendants contend, the Standard Chartered Plaintiffs' recently
submitted Requests for Admission need not be answered solely because the
deadline for discovery had passed when they were submitted.]

Summary
There is a split in the case law on whether the timing of Requests for
Admission is governed by a discovery cutoff, and there is no binding authority
on this Court. But a review of the purposes of Rule 36 yields the conclusion
that subjecting Requests for Admission to a discovery cutoff fail to take
account of those purposes and the requirement under Rule 1 that the Federal
Rules "should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding."
There can be no dispute that the purpose of Rule 36 is to
streamline the case by eliminating uncontested facts and issues, as
opposed to seeking new information, which is one of the purposes of
Provided with this letter are the Requests for Admission, sans exhibits,
and the Defendants' Response. If the Court requests that the exhibits also be
provided, the Plaintiffs will do so promptly.
200 S. BISCAYNE BOULEVARD, SIlo. 1930· MIAMI, FLORIDA 33131

WWW.THEBRODSKYLAWFIRM.COM

786-220-3328· [e-mail]

Hon. Victor Marrero
February 28, 2013
Page 2

discovery. This is why many cases and the leading authority both regard
requests for admission as "not discovery," and that, even if they are
"discovery devices," tying them to a discovery cutoff runs counter to the
very purpose of Rule 36 and the overall goals of the Rules.
Even the one case cited by the Defendants expressly states that

the rule they seek to invoke is not an ironclad rule. The facts show that,

even if there is such a rule, it should not be applied in this case. The

Plaintiffs, therefore, submit that the Court should hold that the

Plaintiffs' requests for admission are not subject to the discovery

deadline and should order they be responded to promptly.2

Facts
The discovery deadline in this case was May 2, 2012. Thereafter,
expert reports were exchanged, the last ones (the Defendants') being
delivered on December 12, 2012. Next on the agenda in this case are
depositions of the experts. The case is not close to being near trial. There is
no deadline for submitting motions for summary judgment. There is no trial
date. 3 The Plaintiffs' request to set aside the Magistrate Judge's order
concerning the submission of otherwise unauthorized sur-rebuttal expert
reports is sub judice.
On January 24, 2013, the Plaintiffs propounded Requests for

Admission on the Defendants. The Defendants have objected on the ground

The Defendants, in yet another delay tactic, have interposed only
general objections and have purported to "reserve the right to supplement
their general objections and to make specific and individualized objections to
each separate Request in the event that any further response to the Requests
is required." Response, at 4. There is no such right. All objections need have
been incorporated in their response to the Requests for Admission. Rule
36(a)(5) plainly states: "The grounds for objecting to a request must be
stated." It does not state that some of the grounds can be stated first, followed
by the meting out of additional grounds if the objector's first try is rejected.
2

Indeed, since the vast majority of the Standard Chartered Cases were
transferred to this Court solely for pretrial purposes by the Judicial Panel on
Multi-District Litigation, it is undecided when these cases will even be ripe
for decision concerning where they will be tried.

Hon. Victor Marrero
February 28,2013
Page 3

that the timing for promulgation of our Requests for Admission is governed
by the pretrial order's deadline for conducting "discovery." The issue,
therefore, is whether a discovery cutoff affects the time to promulgate
req uests for admission.

Discussion
The question of whether requests for admission are subject to a
discover cutoff is purely one oflaw. There is a split of authority on the issue
but none is binding on this Court. Plaintiffs submit that the more well­
reasoned decisions are those that base their rationale on the purpose of
requests for admission, concerning which there is virtually no dispute, and
hold that a discovery cutoff does not bar the submission of subsequent
requests for admission.
As a starting point, all agree that the purpose of requests for
admissions is to narrow the scope of litigation by streamlining and
eliminating undisputed facts and issues, and many courts and a leading
authority state that Requests for Admission are not discovery devices. Thus,
as former Magistrate Judge Katz wrote, "Rule 36 is not a discovery device.
The purpose of the rule is to reduce the costs of litigation by eliminating the
necessity of proving facts that are not in substantial dispute, to narrow the
scope of disputed issues, and to facilitate the presentation of cases to the trier
offact." T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174
F.R.D. 38, 42 (S.D.N.Y. 1997). Accord Nguyen v. Winter, 756 F.Supp.2d 128,
129 (D.D.C. 2010)("Requests for Admission are not a discovery device but are
designed to narrow the issues for trial."); McFadden v. Ballard, Spahr,
Andrews, and Ingersoll, LLP, 243 F.R.D. 1, 7 (D.D.C. 2007)("Requests for
Admissions are not a discovery device but are designed to narrow the issues
for trial."); Dubin v. E.F. Hutton Group Inc., 125 F.R.D. 372, 375 (S.D.N.Y.
1989) ("The purpose of this rule is to allow for the narrowing or elimination of
issues in a case. The rule is not properly speaking a discovery device, rather
it is a procedure for obtaining admissions for the record of facts already
known by the seeker.") (quotation and citation omitted).
Similarly, a leading authority flatly states that "[s]trictly speaking
Rule 36 is not a discovery procedure at all, since it presupposes that the party
proceeding under it knows the facts or has the document and merely wishes
its opponent to concede their genuineness." 8B Wright & Miller, Federal
Practice and Procedure § 2253 (3d ed. 2012).

Hon. Victor Marrero
February 28, 2013
Page 4

Given the undeniable purpose of requests for admission, this Court
should require a response to the Plaintiffs' Requests for Admission in
accordance with Rule 36 because: (1) they are not designed to ascertain new
facts, but rather they are designed to streamline and eliminate facts
rendering the elapsed deadline for fact discovery irrelevant; and (2) to
disallow these requests for admissions would defeat the purpose for which
they serve in litigation.
The Requests in this case plainly serve the purpose for which Rule 36
was designed, and thus it is particularly appropriate that they be permitted
despite being served after the discovery cutoff. There are 276 individual
requests. Approximately 240 of these requests deal with authenticating
particular documents or establishing their status as business records under
the Rules of Evidence. The vast majority of the documents were deposition
exhibits in these cases. These requests, therefore, do not seek to plow new
ground, but rather largely attempt to lessen the time needed to authenticate
and permit admission of likely exhibits at trial.
While, admittedly, there is a division among the cases, there is
considerable authority to support the proposition that requests for
admissions are not subject to a discovery cutoff. Greenfield v. Memorial Sloan
Kettering Hospital, No. 95 Civ. 7658 KTD, 2000 WL 351395, at *4-5 (S.D.N.Y.
Apr. 5, 2000) ("Because I find that a Request for Admissions is not a
discovery device as contemplated by the November 13, 1998 scheduling
conference, the present motion is denied and the Defendants are hereby
ordered to answer the Request for Admissions within 30 days."); O'Neill v.
Medad, 166 F.R.D. 19, 21-22 (E.D. Mich. 1996) ("Simply because Rule 36 is
included in the section of rules governing discovery not enough reason to
restrict the use of requests for admissions by confining them to discovery
dates"); Hurt v. Coyne Cylinder Co., 124 F.R.D. 614, 615 (W.D. Tenn. 1989)
("When the intended functional purpose of Rule 36 considered, the fact that
the rule on requests for admissions is included in the discovery section of the
Federal Rules of Civil Procedure seems little reason to cut off the reasonable
utilization of requests for admissions before trial as usually done with
discovery. This court concludes that the Rule 3G request for admissions is not
included within the parameters of a general cutoff for discovery in a
scheduling order."); Carousel Candy Co. v. Weber, 38 B.R. 927, 936 (Bankr.
E.D.N.Y. 1984) (,,[T]he Court holds that the defendant['s] ... objection to
plaintiffs Requests for Admission on the ground that they were served on

Hon. Victor Marrero
February 28, 2013
Page 5

defendants after the date by which all discovery was to be concluded is
without merit. Requests for Admissions, pursuant to FRCP 36, are in the
nature of a Pre-Trial Order in that they are designed to narrow issues and
eliminate those over which there is no dispute. They are not designed to be a
discovery device ..."). Cf. Kershner v. Beloit Corp., 106 F.R.D. 498, 498 (D.
Me. 1985) (requiring response; while party should have sought extension of
discovery deadline, purposes of Rule 36 would be advanced by requiring
response, given "the indisputable conclusion that a response to the request is
highly likely to save the parties time and expense and to benefit the Court by
avoidance of unduly prolonging the trial for no significant purpose," and
opposing party showed no prejudice).
The conclusions in these cases follow from the purpose of requests
under Rule 36, rather from, for example, the fact that Rule 36 lies between
traditional discovery devices and Rule 27. But deciding whether requests for
admission are either fish or fowl is not even the point. The real question is
whether the purposes of the Federal Rules are best served by subjecting them
to a discovery cutoff. Rule 1 commands that the Federal Rules of Civil
Procedure "should be construed and administered to secure the just, speedy,
and inexpensive determination of every action and proceeding." This is one of
those instances where resort to Rule 1 is a fruitful exercise in determining
how to "construe and administer" Rule 36 in this case.
In a case with as many documents and witnesses as this case,
establishing a blanket rule requiring requests for admission to be served
before the discovery cutoff serves no purpose and actually runs counter to
common experience. Since requests for admissions require a party to have
already ascertained the facts or documents underlying each request, it
necessarily follows that the party seeking to promulgate a Rule 36 request
needs time to sift through discovery to determine what documents it will
need at trial, thus being proper candidates for mention in a Rule 36 request.
It is impractical to assume that a party in a case with hundreds of thousands
of documents produced is bound, while completing fact discovery, both to
conduct a comprehensive analysis of documents gathered during discovery -­
including documents produced late in the game -- and to complete
comprehensive requests for admission during the same time period. This
argument is supported by the common-sense view of Rule 36 by the Tenth
Circuit fifty years ago in Champlin v. Ohlahoma Furniture Mfg. Co., 324 F.2d
74, 76 (10th Cir. 1963), still true today:

Hon. Victor Marrero
February 28, 2013
Page 6

The Rule serves a very useful purpose in that it encourages
admissions and thus, in many cases, eliminates the necessity of
the formal proof of relevant facts. It is most advantageously
used for that purpose prior to the pretrial conference, and the
facts established by the answers to the request for admission
may, as was done in this case, be incorporated into the pre-trial
order as undisputed material facts in the case, provided, the
parties are in agreement about such facts.
To justifY their refusal to answer the Requests for Admission, the
Defendants cite this Court's decision in Fournier v. Erickson, 242 F. Supp. 2d
318,334 (S.D.N.Y. 2003). In Fournier, the Court's analysis was as follows:
Fact discovery in this case concluded on July 20, 2001. Expert
discovery concluded on September 14, 2001. Fournier's RFA was
made over a year later, and Defendants refused to respond on
grounds of untimeliness. Requests for admissions pursuant to
Rule 36 of the Federal Rules of Civil Procedure are generally
bound by fact discovery deadlines. See Cespedes v. Coughlin, 179
F.R.D. 122, 125-26 (S.D.N.Y.1998); Siao-Pao v. George, No. 90
Civ. 5376, 1992 WL 236184, at *3 (S.D.N.Y. Sept. 10, 1992).
While the Court has discretion to compel a response to untimely
requests for admissions, see, e.g., Revlon Consumer Corp. v.
Estee Lauder Co., Inc., No. 00 Civ. 5960, 2001 WL 521832, at *1
(S.D.N.Y. May 18, 2001), the Court has been presented with no
compelling reason to do so, especially where, as here, the request
is made more than one year after the discovery deadline and on
the eve of trial. For these reasons, that portion of Fournier's
motion seeking to compel Defendants to respond to the RFA is
denied.
It is noteworthy, of course, that Fournier does not announce an iron­

clad rule that all requests for admission must be served before the discovery
cutoff. Nor does Fournier, or either of the two cases on which it relies,
Cespedes and Siao-Pao, discuss the purposes of Rule 36 and whether
subjecting requests for admission to a discovery cutoff serves those purposes.
Indeed, Fournier and the cited Revlon case show precisely why, even if
requests for admissions are "discovery devices" and even if they are
sometimes subject to a discovery cutoff, that does not mean that Defendants
should not be required to answer the Requests for Admission in this case:

Hon. Victor Marrero
February 28,2013
Page 7

First, we are not "on the eve of trial." Fournier, supra. Second, because, as in
Revlon, the parties still have [at least] two months before the close of expert
discovery." Revlon Consumer Prod. Corp. v. Estee Lauder Co., Inc., 50 Fed. R.
Servo 3d 254 (S.D.N.Y. 2001). In other words, "no harm, no foul."
These requests for admissions are intended to fulfill the true purpose
of Rule 36 and, therefore, should not be estopped by a determination based
largely on where Rule 36 appears in the Rules. Whereas discovery is
expansive in nature with the aim of ascertaining as many material facts and
issues as possible, requests for admissions are constrictive in nature with the
aim of narrowing the scope of the case in anticipation of trial. Such are the
requests for admission propounded by the Plaintiffs. They are designed to
streamline and narrow the issues and facts left to be proven at trial; and to
bring this action closer to resolution-whether it is by settlement, summary
judgment, or a decision on the merits. Requiring the Standard Charted
Defendants to respond to these Requests would therefore promote judicial
economy at later stages of this litigation.
Respectfully yours,

cc:

Counsel for Standard Chartered Defendants
Members of Standard Chartered Plaintiffs' Steering Committee