United States: Can They Do That? Commonly Misused Phrases In Pleadings And Discovery

1  "The document speaks for itself"

One commonly used phrase in answers and discovery responses is that a document "speaks for itself." Many defense lawyers use this phrase to avoid conceding issues related to the interpretation of a writing, such as a contract. This tactic has drawn criticism from courts, and beginning in July 2018 the Arizona Rules of Civil Procedure prohibit using this phrase in an Answer.

Long before Arizona prohibited using "the document speaks for itself" to respond to a complaint, courts have scorned the use of this phrase. For example, in FDIC v. Stovall,1 a court expressed its irritation that more than half of the defendants' responses contained the phrase. The court wrote, "A pox upon these words. They have no place in a proper response—whether it be made in response to discovery requests or an allegation in a complaint or counterclaim."2 The court explained why it wishes illness on the phrase: It violates the plain language of Rule 8(b) and increases the cost of litigation by requiring broader discovery requests.3

Moreover, contending that a document speaks for itself can obscure the meaning of the rest of the response to an allegation. As an example, the complaint in Stovall alleged that "[a]ll loans to insiders ... required full Board approval."4 Defendants responded that "the document speaks for itself, any allegation inconsistent with the document is denied, and that defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations."5 The court observed that it was unclear which document spoke for itself, what allegations existed other than the "all loans to insiders" allegation, and whether the defendants were so lacking in information regarding their board duties that they were unsure whether they could engage in insider transactions.6 "With the 'document speaks for itself' line, the response is an amorphous nothing."7 The court requir-ed defendants to amend their Answer to properly respond to the Complaint.8 Other courts have followed suit and required amendment.9

While requiring amendment may seem heavy handed, it can get much worse. Some courts have stricken responses contending that a document speaks for itself and deemed the corresponding allegations in the complaint to be admitted.10

Courts also have concluded that "the document speaks for itself" is not an appropriate response to discovery requests and warned that such a response can lead to sanctions. For instance, in Aprile Horse Transp. Inc. v. Prestige Delivery Sys. Inc.,11 the court reasoned that such a response "avoids the purpose of requests for admission, i.e., narrowing the issues for trial." According to another court, the response is also a waste of time because it "does not move the ball an inch down the field and defeats the narrowing of the issues in dispute that is the purpose of the rule."12 At least one court has reasoned that contending a document speaks for itself in a discovery response can lead to sanctions without an opportunity to amend the response:

Gamesmanship in the form of non-responsive answers, vague promises of a future response, or quibbling objections can result in the request being deemed admitted or in a post-trial award of monetary sanctions without prior opportunity to correct the deficiency. Therefore, the only safe course of action for counsel is to adhere to the plain language of Rule 36(a).13

The new Arizona Rule of Civil Procedure 8(c), which became effective on July 1, 2018, requires a denial of an allegation in a pleading to "fairly respond to the substance of the allegation. A denial does not fairly respond to the substance of an allegation if it ... answers an allegation by stating that 'the document speaks for itself.'"14 The Committee on Civil Justice Reform's Report noted that parties often state that a document speaks for itself without saying whether they are denying, admitting, or denying in part while explaining, or denying for lack of information sufficient to permit admission or denial.15 The committee proposed the rule change "so parties can get to the bottom of their dispute quickly, as the Rules contemplate."16 Under the revised Rule 8(c), answers will need to respond directly to allegations concerning documents. Although the new rule only affects answers filed in state court, litigators would be well suited to avoid this phrase in discovery responses and answers filed in federal court too.


1. No. 2:14-CV-00029-WCO, 2014 WL 8251465 (N.D. Ga. Oct. 2, 2014).

2. Id. at *11.

3. Id. at *11-12.

4. Id. at *11.

5. Id.

6. Id. at *12.

7. Id.

8. Id. at *13.

9. See, e.g., Valley Forge Ins. Co. v. Hartford Iron & Metal Inc., No. 1:14-CV-00006-RLM, 2015 WL 5730662, at *4 (N.D. Ind. Sept. 30, 2015) (striking Answer and requiring amendment); Do It Best Corp. v. Heinen Hardware LLC, No. 1:13-CV-69, 2013 WL 3421924, at *5 (N.D. Ind. July 8, 2013) (collecting cases disapproving of "the docu-ment speaks for itself" in an Answer and requiring amendment).

10. See, e.g., Rudzinski v. Metro. Life Ins. Co., No. 05 C 0474, 2007 WL 2973830, at *4 (N.D. Ill. Oct. 4, 2007).

11. No. 5:13-CV-15-GNS-LLK, 2015 WL 4068457, at *5 (W.D. Ky. July 2, 2015).

12. Miller v. Holzmann, 240 F.R.D. 1, 4 (D.D.C. 2006).

13. House v. Giant of Maryland LLC, 232 F.R.D. 257, 262 (E.D. Va. 2005).

14. Rule 8(c)(2)(A), Ariz.R.Civ.P..

15. The Committee on Civil Justice Reform's Report to the Arizona Judicial Council, at 13 (Oct. 2016).

16. Id.

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Originally published in Ari Zona Attorney

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