In Lewis v. Nelson, 2015 UT App 262 (Davis, J.) (10/29/15) the Court of Appeals recently held that Rule 26– allowing only five requests for admissions in Tier 1 cases– is binding and cannot be ignored by a trial judge.

Under Rule 26(c)(5), Tier 1 discovery allows for only five requests for admission. Lewis propounded thirty requests for admission to Nelson, along with requests for production and interrogatories, all in numbers in excess of the Tier 1 limits.

Nelson objected to the excess discovery requests on the grounds that they were not proportional, but the trial judge ordered him to “respond to all discovery . . .”

Then Nelson answered only the first five requests for admission, declining to answer the remaining twenty-five as beyond the Tier 1 limits. Lewis moved for summary judgment on the ground that the unanswered requests for admission should be deemed admitted under Rule 36(b)(1), and thus that there were no longer material facts in dispute. The trial judge agreed, and granted summary judgment for Lewis, ruling that the fact that the requests for admissions exceeded the number allowed for Tier 1 cases did not justify ignoring them. That is, Nelson should have objected or otherwise sought the Court’s intervention.

On appeal, the Court of Appeals reversed. Because Lewis never sought court permission or a stipulation allowing him to submit excess discovery requests, they were invalid. Extraordinary discovery is not automatic, but requires a showing of need and proportionality. The 2011 amendments to rule 26 made a major change to prior procedure, and obviated the need for a party to object to requests for admission on rule 26(c)(5) grounds: “To require otherwise would turn the amended rule 26 on its head.” It is the proponent’s burden to demonstrate that extraordinary discovery is proportional, and to certify that the party has reviewed and approved a discovery budget. The trial court erred in holding the un-answered requests for admission to be admitted.

Interestingly, in footnote 3, the court left open the issue of whether a party may answer just the first five in a set of excess requests, or pick and choose which ones to answer.n Lewis v. Nelson, 2015 UT App 262 (Davis, J.) (10/29/15) the Court of Appeals recently held that Rule 26– allowing only five requests for admissions in Tier 1 cases– is binding and cannot be ignored by a trial judge.