Most Texas lawyers know that a party seeking to set aside deemed admissions ordinarily bears the burden to establish good cause and lack of prejudice. But many of these same lawyers do not realize that in many cases, this burden of proof actually shifts to the party opposing withdrawal of the deemed admissions. And sometimes, a great strategic advantage may be lost as a result.
Under Rule 198 of the Texas Rules of Civil Procedure, if a party does not timely respond to a request for admissions “the request is considered admitted without the necessity of a court order.” Tex. R. Civ. P. 198.2(c). Any matter deemed admitted “is conclusively established as to the party making the admission unless the court permits the party to withdraw or amend the admission.” Tex. R. Civ. P. 198.3.
To obtain permission to withdraw deemed admissions, a party ordinarily must show (1) good cause, (2) that the other party will not be unduly prejudiced, and (3) that the presentation of the merits of the lawsuit will be served by the withdrawal. See id.; Wheeler v. Green, 157 S.W.3d 439, 443 & n.2 (Tex. 2005) (per curiam).
Generally, a party demonstrates good cause by showing the failure to respond “was accidental or the result of a mistake, rather than intentional or the result of conscious indifference.” Stelly, 927 S.W.2d at 622. “Undue prejudice depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party’s ability to prepare for it.” Wheeler, 157 S.W.3d at 443 (citation omitted).
The party seeking withdrawal ordinarily bears the burden of proof. Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 807 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (citation omitted). But what a great many Texas lawyers don’t realize is that this burden of proof shifts where the deemed admissions are merit-preclusive. A merit-preclusive request is any request that essentially asks a party to concede the invalidity of its claim. See, e.g., Ramirez v. Noble Energy, Inc., 521 S.W.3d 851, 858–59 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (request for admission that defendant was not a proper party is merit-preclusive).
When the deemed admissions are merit-preclusive, they implicate due process by compromising a party’s right to present the merits of the case. Wheeler, 157 S.W.3d at 443. Denial of a motion to withdraw merit-preclusive admissions effectively imposes a death-penalty discovery sanction. Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (per curiam).
Accordingly, where the motion seeks to withdraw merit-preclusive deemed admissions, the party opposing withdrawal must prove the moving party’s failure to answer the admissions resulted from “flagrant bad faith or callous disregard of the rules.” Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 666 (Tex. App.—San Antonio 2014, pet. denied) (citation and internal quotation marks omitted). In that situation, good cause exists absent such proof of bad faith or callous disregard of the rules. Marino, 355 S.W.3d at 634. The court also presumes that presentation of the merits would be served by allowing withdrawal of the deemed admissions. See, e.g., id.
So, if you are faced with a motion to set aside deemed admissions, your first step must be to determine whether the requests are merit-preclusive—and thus will shift the burden of proof to the party resisting relief.