Defense discovery in commercial fraud starts with RFAs on the plaintiff's reliance, damages, and corroboration. Most defense counsel bury these in the interrogatory set. Shows which five RFA targets create the factually-devoid record on key elements -- and why getting responses before deposition locks in the best version of the evidence.

Five RFA Targets That Win the Defense MSJ Before Depositions Start

Defense discovery in a commercial fraud case is built around three attack vectors: the reliance story, the damages story, and the sophistication profile. Requests for Admission are the fastest way to lock in a factually-devoid record on each of those vectors before depositions give the plaintiff a chance to explain, qualify, or pivot. If you are defending a commercial fraud case, the five RFA targets below should be in your first wave of discovery — before a single deposition is scheduled.

The Discovery Plan

What the Law Requires

Under Code of Civil Procedure section 2033.250(a), RFA responses are due 30 days after service. If served by mail within California, add five calendar days (CCP section 1013(a)); if served electronically, add two court days (CCP section 1010.6(a)(3)(B)).

On the defense side, RFAs serve a different primary function than on the plaintiff side. The plaintiff uses RFAs offensively to create deemed admissions on elements the defendant must disprove. The defense uses RFAs to create a factually-devoid record: responses showing that plaintiff cannot identify specific evidence on key elements. When that record is combined with an MSJ, the defendant argues the plaintiff has admitted, through its own discovery responses, that it cannot establish a triable issue on those elements.

Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 requires that reliance be justifiable, not merely actual. A sophisticated party that had access to the same information the defendant had — and did not independently verify what it was told — has a weaker reliance argument. Wave 1 RFAs build the record of what the plaintiff could have found if it had looked.

What the Corpus Shows

This component is doctrine-based — the RFA strategy framework comes from the defense discovery structure rather than a single corpus case. The Lightking loss (West Covina Dept 6) provides the negative example: plaintiff's RFA strategy locked in the record before depositions were taken. The same mechanism works for defense. The sequence matters: RFA responses come in, you know what plaintiff claims and cannot substantiate, then you take the PMK deposition to confirm the gaps. The MSJ separate statement is built from both.

The five RFA target categories below each correspond to a specific defense MSJ argument.

What Counsel Does

If you are the moving party (as defense):

The five RFA targets that build the factually-devoid MSJ record:

Target 1: Reliance on specific representations. Serve RFAs requiring the plaintiff to admit that it retained counsel, financial advisors, or other professionals to evaluate the transaction before signing. Serve RFAs requiring the plaintiff to admit it reviewed specific documents (defendant's financial statements, capability assessments, prior transaction records) before contracting. Admissions here establish that the plaintiff conducted due diligence — which complicates the "I believed what they told me without question" reliance narrative.

Target 2: Corroboration failure. Serve RFAs requiring the plaintiff to admit it did not request any written warranty or representation from the defendant regarding the subject matter before contracting. If the plaintiff, a sophisticated commercial entity, could have demanded written assurance and did not, that is evidence the plaintiff did not actually rely on the oral representations in the way it now claims.

Target 3: Sophistication markers. Serve RFAs requiring the plaintiff to admit it was represented by counsel during the transaction, that it independently reviewed the subject matter of the representations, and that it had access to the same information the defendant had regarding the subject matter before contracting. These admissions build the Lazar justifiable-reliance attack: a sophisticated party with access to the relevant information cannot claim it justifiably relied on defendant's representations without investigation.

Target 4: Damages mitigation. Serve RFAs requiring the plaintiff to admit it has not taken specific mitigation steps since the alleged breach. Civil Code section 3300 requires a fraud plaintiff to take reasonable steps to minimize its losses. Admissions that identified mitigation steps were not taken directly cap the damages exposure, regardless of the liability finding.

Target 5: Damages specificity. Serve RFAs requiring the plaintiff to admit the specific categories of damages it claims and the approximate amounts. If the plaintiff's damages theory is vague in the pleading, RFAs pinning down the theory before expert disclosure prevents late-stage damages inflation.

Timing is everything. Serve the RFAs in Wave 1, simultaneously with the initial RFPs and interrogatories. If plaintiff fails to respond to the RFAs, move for a deemed-admitted order before scheduling any depositions. If plaintiff responds with evasion, calendar the 45-day window to move to compel further responses. If plaintiff responds substantively, the responses define the scope of the PMK deposition.

If you are the opposing party (as plaintiff):

Serve timely, verified responses to all RFA sets. An admission that you retained counsel before contracting is not fatal to your fraud claim — it is expected. What matters is what that counsel found, not whether you hired counsel.
Be precise in your responses. Admitting that you "reviewed" a document does not mean the document disclosed what the defendant knew. Distinguish between reviewing what was disclosed and having access to what was withheld.
Object to RFAs that call for legal conclusions about "justifiable reliance" or "substantially similar" — these are not facts that can be admitted or denied, they are legal conclusions about the ultimate issue.
Where a mitigation RFA identifies a specific step you did not take, investigate whether that step was available, reasonable, and economically viable. If it was not, your response should explain why. "Admit" to an impossible mitigation step concedes damages caps you should not be conceding.

This article is for educational purposes only and is not legal advice. All frameworks and sample language should be reviewed by a licensed attorney and adapted to your particular client, case, and situation.