Rule 37 Failure to Admit: When Are Proof Expenses Due?

Legal content overseen by Nathan Walter, Esq., attorney licensed in California (State Bar No. 313299).

In federal civil litigation, Rule 37(c)(2) allows a party that requested an admission and later proves the matter true or the document genuine to move for the reasonable expenses, including attorney’s fees, incurred in making that proof.

The court must order payment unless one of four exceptions applies: the request was held objectionable, the admission sought was of no substantial importance, there was a reasonable ground to believe the responding party might prevail on the matter, or there was another good reason not to admit (Fed. R. Civ. P. 37(c)(2)(A)–(D)).

A Rule 37 failure to admit dispute therefore concerns a particular requested admission and the cost of proving it, not an automatic award of the entire litigation bill. This article is for insurance litigation teams weighing a proposed denial.

What does Rule 37 failure to admit mean?

Rule 37(c)(2) addresses a failure to admit a matter requested under Federal Rule 36 when the requesting party later proves that matter true or proves the document genuine. The requesting party may move for reasonable expenses incurred in making that proof, including attorney’s fees, and the court must order payment unless one of the four listed exceptions applies.

A request for admission (RFA) under Rule 36(a)(1) asks another party to admit the truth of matters within the scope of Rule 26(b)(1) relating to “facts, the application of law to fact, or opinions about either” or “the genuineness of any described documents.” If a matter is not admitted, Rule 36(a)(4) requires the answer to “specifically deny it or state in detail why the answering party cannot truthfully admit or deny it.” That unadmitted matter is the starting point for Rule 37(c)(2).

This article uses “costs of proof” as explanatory shorthand. The rule’s own wording is “reasonable expenses, including attorney’s fees, incurred in making that proof.” For the underlying device, see the request-for-admission overview and the guide to discovery responses.

Rule 37 failure to admit quick reference

Use these federal distinctions when reviewing a proof-expense demand:

• Trigger: a matter requested under Rule 36 is not admitted, and the requesting party later proves the matter true or the document genuine (Rule 37(c)(2)).
• Payment covered: reasonable expenses, including attorney’s fees, incurred in making that proof (Rule 37(c)(2)).
• Automatic: no. The requesting party may move, and the court must so order unless an exception applies (Rule 37(c)(2)).
• Exceptions: the request was held objectionable under Rule 36(a); the admission sought was of no substantial importance; the party failing to admit had a reasonable ground to believe it might prevail on the matter; or there was other good reason for the failure to admit (Rule 37(c)(2)(A)–(D)).
• Insufficient answer: a separate motion under Rule 36(a)(6), with Rule 37(a)(5) applying to an award of expenses.

What are the four exceptions to Rule 37(c)(2) proof expenses?

Federal Rule 37(c)(2)(A)–(D) lists four exceptions: a request held objectionable under Rule 36(a), an admission sought of no substantial importance, a reasonable ground to believe the responding party might prevail on the matter, or other good reason for not admitting. Later proof does not erase those exceptions, and simply having asserted an objection is not the same as having the request held objectionable.

Rule 37(c)(2)(A): the request was held objectionable under Rule 36(a)

The text says “held objectionable,” not “objected to” or “served with an objection.” An objection that was only asserted and never held objectionable does not match that wording.

Rule 37(c)(2)(B): the admission sought was of no substantial importance

The phrase looks at “the admission sought,” meaning the importance of the requested admission itself. It does not refer to the total amount at stake in the case.

Rule 37(c)(2)(C): reasonable ground to believe it might prevail on the matter

The party failing to admit must have “had a reasonable ground to believe that it might prevail on the matter.” The measure is possible success on the matter requested, not winning the entire lawsuit.

Rule 37(c)(2)(D): other good reason for the failure to admit

The rule says “other good reason for the failure to admit” and does not list examples. This article therefore does not describe any particular reason as qualifying automatically.

Which attorney’s fees and expenses can Rule 37(c)(2) cover?

Federal Rule 37(c)(2) identifies reasonable expenses, including attorney’s fees, “incurred in making that proof.” The text ties the requested payment to proving the particular nonadmitted matter or the document’s genuineness; it does not authorize the entire case bill merely because one request was not admitted.

Read in that way, each expense in a demand needs a link to the proof of a specific matter. An invoice that does not identify the proof-related work may leave that connection unclear. As an office practice, not a procedural prerequisite, counsel reviewing a demand can map each requested matter to the later proof and then to the tasks claimed for that proof.

Rule 37(c)(2) expressly includes attorney’s fees but does not itemize other types of expense. This article therefore does not say that any particular deposition, expert fee, travel cost or fee-motion preparation expense is or is not covered. The standard in the text is “reasonable expenses, including attorney’s fees,” and the connection is “incurred in making that proof” (Rule 37(c)(2)).

Does losing the disputed issue automatically require payment?

No: Rule 37(c)(2) requires a motion and preserves four exceptions even after the requesting party proves the matter. In particular, Rule 37(c)(2)(C) protects a failure to admit when the responding party had a reasonable ground to believe it might prevail on that matter.

The examples in this article are invented. They show what counsel might evaluate, not how a court would rule.

Suppose an insurer’s defense team denies an RFA stating that its insured was driving above the posted limit, because the only evidence available at the time was a conflicting witness account. The requesting party later proves the speed. Counsel reviewing a proof-expense demand would separate two questions: whether the later proof succeeded, and what the responding party had in front of it when it denied. Rule 37(c)(2)(C) points to the second question.

Now compare an RFA about the angle of impact, where the parties’ accounts diverge, with an RFA asking whether a repair estimate in the file is a genuine copy of the document the insured’s own adjuster received. Counsel would ask whether Rule 37(c)(2)(C) or (D) fits a denial of the first, and whether any exception fits a denial of genuineness for a document the responding party could examine. The rule text does not answer either question in advance (Rule 37(c)(2)(A)–(D)).

Is a proof-expense motion the same as challenging an insufficient RFA answer?

No. Federal Rule 36(a)(6) lets the requesting party challenge the sufficiency of an answer or objection, while Rule 37(c)(2) concerns the expenses of later proving a matter that was not admitted. Rule 36(a)(6) applies Rule 37(a)(5) to expenses on the sufficiency motion; that is a different expense provision.

Rule 36(a)(6) says the requesting party “may move to determine the sufficiency of an answer or objection.” “Unless the court finds an objection justified, it must order that an answer be served.” On finding that an answer does not comply with the rule, “the court may order either that the matter is admitted or that an amended answer be served.” A noncompliant answer therefore does not by itself turn every denial into an admission.

The timing differs. A Rule 36(a)(6) motion tests an answer or objection already served. A Rule 37(c)(2) motion follows later proof of the matter or the document’s genuineness. Rule 36(a)(5) adds that “[a] party must not object solely on the ground that the request presents a genuine issue for trial.” For general response guidance, see the request-for-admission overview.

What records help counsel review a proof-expense demand?

As a suggested office workflow, counsel can align the exact request and served response with the later proof, the claimed proof-related expenses and the possible Rule 37(c)(2) exceptions. The rule supplies the expense standard and four exceptions, but it does not prescribe this worksheet.

The steps below are suggestions, not a motion checklist:

1. Isolate the proposition in the request and the response served under Rule 36(a)(4).
2. Identify where and how the requesting party later proved the matter true or the document genuine.
3. Connect each claimed task or expense to that proof, using the rule’s words “incurred in making that proof.”
4. Evaluate each exception in Rule 37(c)(2)(A)–(D) against the request, the response and the relevant record. For subsection (C), examine the reasonable ground the responding party had for believing it might prevail on the matter.
5. Obtain attorney review under the procedures that govern the case.

Rule 37(c)(2) states no number of days for the motion, and this article does not determine a deadline in any case. Keeping the underlying exhibits in order also helps with step 2; see how to organize discovery documents.

Suppose an RFA asks whether Exhibit 4 is a genuine copy of a dated inspection report. After nonadmission, the requesting party later proves genuineness. Counsel separately reviews work that went to proving authenticity and work that went to liability. The language “incurred in making that proof” is the reason for the separation. The illustration does not decide the recoverable amount or whether an exception applies.

Do these proof-expense rules also govern state-court cases?

This article explains Federal Rules of Civil Procedure 36 and 37, not a state-court expense rule. Its four-exception explanation is tied to federal Rule 37(c)(2), so it should not be presented as the procedure of a particular state.

For background on the device itself, see the request-for-admission overview. This article gives no state-law comparison.

How can Briefpoint support RFA response review?

Briefpoint drafts responses and objections to requests for admission in output editable in Microsoft Word, with attorneys keeping final review. Client Bridge sends clients plain-language questions through a secure link so they can answer and upload documents for attorney review.

The connection to Rule 37(c)(2) is narrow: client answers and documents, together with reviewable response drafts from Briefpoint’s discovery-response drafting, give counsel material to work from before choosing response language. Applying the four exceptions and deciding whether to pursue or oppose a proof-expense motion remain attorney decisions.

For this workflow, client collection and response drafting serve different purposes: one gathers information from the client, while the other supplies editable response language for counsel to assess against the request and record.

Book a demo to see how Briefpoint supports discovery-response drafting for attorney review.

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What are the FAQs about Rule 37 failure to admit?

Federal Rule 37(c)(2) concerns reasonable expenses of proving a requested matter that was not admitted, including attorney’s fees. It operates on motion and retains the four exceptions in subsections (A)–(D); it is distinct from Rule 36(a)(6)’s sufficiency procedure.

When can denying a federal request for admission lead to paying the other side’s attorney’s fees?

Under Rule 37(c)(2), the requesting party must later prove the nonadmitted matter true or the document genuine and move for reasonable expenses incurred in making that proof, including attorney’s fees. The court must order payment unless one of the four exceptions applies. A denial alone does not establish entitlement to those expenses.

Does a reasonable denial become sanctionable just because the other party later proves the fact?

Not necessarily. Rule 37(c)(2)(C) provides an exception when the party that failed to admit had a reasonable ground to believe it might prevail on the matter. The later proof does not remove that exception or the other three listed exceptions. Whether the asserted ground was reasonable requires evaluation of the actual circumstances.

Does objecting to a request automatically prevent proof expenses?

No. Rule 37(c)(2)(A) says the request must have been “held objectionable under Rule 36(a),” not merely that an objection was served. Rule 36(a)(5) also prohibits an objection based solely on a genuine issue for trial. Counsel therefore must distinguish an asserted objection from a ruling that satisfies the expense exception.

Can Rule 37(c)(2) shift the entire litigation bill?

The rule authorizes reasonable expenses, including attorney’s fees, “incurred in making that proof,” rather than the entire litigation bill simply because one matter was not admitted. A review can connect each claimed task to proof of the particular matter or document’s genuineness. The rule’s four exceptions remain part of the analysis.

Is there a nationwide filing deadline in Rule 37(c)(2)?

Rule 37(c)(2) does not state a number of days for filing a proof-expense motion. Its text requires later proof and a motion, while preserving four exceptions to payment. That silence does not establish that a motion may be filed at any time; this article does not determine the applicable deadline for an individual case.

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