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Reynolds v. University of Pennsylvania

October 25, 2010


The opinion of the court was delivered by: O'neill, J.


Plaintiff Frank Reynolds sued defendant the University of Pennsylvania for breach of contract and unjust enrichment in connection with alleged misrepresentations made to Reynolds by Penn. During discovery, Penn served requests for admission on Reynolds. Penn alleges Reynolds improperly refused to admit the facts requested and unnecessarily forced Penn to incur costs to prove facts Reynolds should have admitted. Penn now moves to recover its expenses under Fed. R. Civ. P. 37(c)(2).*fn1 For the following reasons, I will grant Penn's motion.*fn2


The present motion arises out of alleged discovery misconduct on the part of Reynolds. In the underlying lawsuit, Reynolds asserted that Penn had misrepresented the nature of his affiliation with Penn's Wharton School of Business. Reynolds alleged that at least several of the misrepresentations were contained in PowerPoint presentations shown to Reynolds during the 2002 admissions process. He included those alleged misrepresentations in his complaint and referred to them during his deposition.

At some point during discovery Penn came to believe that Reynolds had altered PowerPoint slides in an attempt to support his case against Penn. In other words, Penn believed the alleged misrepresentations contained in the slides had been added by Reynolds in preparation for litigation. It came to this conclusion because its electronic analysis of the slides revealed that changes had been made to the slides with Adobe 6.0 software, which it believed was unavailable in March 2002 when Adler gave the presentation. In order to explore this theory, Penn served requests for admission on Reynolds asking him to admit Adobe 6.0 software was not available to the public until May 2003. Reynolds, citing a lack of personal knowledge, refused to admit the requested facts. Penn then supplemented its requests with a copy of a May 2003 press release from Adobe announcing the release of the new Adobe 6.0 products and again asked Reynolds to amend his responses. After Reynolds refused for a second time, Penn informed Reynolds of its intention to travel to California to depose an Adobe representative. Additionally, Penn warned Reynolds that it considered his refusal to admit the facts to be unwarranted and planned to recover its costs of obtaining the deposition of the Adobe witness pursuant to Fed. R. Civ. P. 37(c)(2). Penn subsequently deposed Randy Swineford, an Adobe representative, who stated Adobe Acrobat 6.0 and related software were not publicly available until May 2003. See Swineford Dep. at 30.

The case eventually proceeded to trial, during which Penn read Swineford's deposition into the record. Reynolds argued that he did not alter the PowerPoint slides. He did not, however, dispute that the software had been released in May 2003. On June 22, 2010, the jury found that Penn had been unjustly enriched and awarded Reynolds $66,000.00. On July 7, 2010, Penn filed the instant motion to recover the costs incurred in obtaining Swineford's deposition.


Penn argues that Reynolds engaged in delay tactics and refused to admit to the release date of the Adobe 6.0 software in order to force Penn to incur additional costs. Penn maintains that it proved the requested facts at trial and insists Reynolds does not qualify for any exception under Rule 37(c)(2). Accordingly, Penn asks me to award fees and costs in the amount of $7,883.00.

Reynolds makes two arguments in response: (1) that Penn failed to prove the truth of the requested facts; and (2) that the requested facts were immaterial in any event. For both reasons, Reynolds argues that an award of fees would be inappropriate.

I. Rule 37(c)(2) Costs for Failure to Admit

A. Legal Standard

Requests for admission under Rule 36 are intended to "narrow the issues for trial which are generally contested." See Warren Pub. Co. v. Spurlock, 645 F. Supp. 2d 402, 445 (E.D. Pa. 2009) (citing United Coal Co. v. Powell Constr. Co., 839 F.2d 958, 967 (3d Cir. 1988)). A party may file requests for admission seeking statements or opinions of fact or of the application of law to fact. See Fed. R. Civ. P. 36(a). The Rule requires the responding party to provide answers on the substance of the matter requested, specifically admitting or denying its truth. See Fed. R. Civ. P. 36(a)(4). Further, the responding party may refuse to respond for a lack of knowledge "only if the party . . . has made reasonable inquiry and the information it knows . . . is insufficient to enable it to admit or deny." Seeid.; Kutner Buick, Inc. v. Crum & Foster Corp., No. 95-1268, 1995 WL 508175, at *1 (E.D. Pa. Aug. 24, 1995) (stating need for party to make "a reasonable inquiry").

Rule 37(c)(2) provides for sanctions against a party for improperly denying a Rule 36 request for admission. See Fed. R. Civ. P. 37(c)(2). If the requesting party later proves the matter true, it may move to recover reasonable expenses incurred in making its proof. See id. The Court must award sanctions unless: (1) the request was objectionable; (2) the admission was of no substantial importance; (3) the party failing to admit has a reasonable ground to believe it might prevail on the matter; or (4) there was other good reason for the failure to admit. See id.

"[T]he true test under Rule 37(c) is not whether a party prevailed at trial but whether he acted reasonably in believing that he might prevail [on the issue.]" Fed. R. Civ. P. 37 advisory committee's note. Further, an issue is of substantial importance when it is material to the disposition of the case. See S.E.C. v. Happ, 392 F.3d 12, 34-35 (1st Cir. 2004) (finding requested fact was of substantial ...

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