Chapter §36.6 Analysis

• Jurisdiction: Washington

§36.6 ANALYSIS

This section analyzes application of CR 36 and the corresponding federal rule.

(1) Scope and number limitations

The original version of CR 36 and several cases interpreting early revisions of it engrafted judicial limitations on the scope of requests for admission. The 1989 amendments to the rule, however, should mean that the only limitations are contained in the rule itself. Thus, requests for admission are permissible if they are within the scope of CR 26(b) and relate to statements of fact, opinions of fact, application of law to fact, or the genuineness of documents. Copies of documents referred to in a request must be served with it unless they have been furnished or made available for inspection or copying.

Example: The following requests for admission are proper under CR36(a) Admit that driver X was stopped at a red light when he was struck by defendant Y. Admit that plaintiff was 85 years old at the time of her placement at Pegota Gardens Nursing Home. Admit that that no emergency existed at the time defendant struck the rear of plaintiff's vehicle. The following requests for admission are improper: Admit that plaintiff was a "vulnerable adult" as that term is defined by RCW 74.34.020 at the time of her placement in Pegota Gardens Nursing Home. Admit that this matter is governed solely by the Vulnerable Adult Statute.

The foregoing improper examples request an admission on a pure issue of law, which is not allowed under CR 36.

CR 36 does not limit the number of requests or the number of different sets of requests for admission a party may propound. The court may, however, on its own initiative under CR 26(a), or pursuant to a motion for protective order under CR 26(c), limit the frequency and number of requests for admission. Local rules also may impose limitations. In the absence of prior limitations, the frequency and number will depend upon the facts and complexities of each case. In some cases, courts have permitted over 100 requests. Shawmut, Inc. v. Am. Viscose Corp., 12 F.R.D. 488 (D. Mass. 1952); United States v. Schine Chain Theatres, Inc., 4 F.R.D. 109 (W.D.N.Y. 1944). On the other hand, courts have held that serving excessive requests for admission is an abuse of the discovery process. Misco, Inc. v. U.S. Steel Corp., 857 F.2d 1475 (6th Cir. 1988) (unpublished) (filing 2,028 requests for admission when local rules limited the number of interrogatories to 30 held improper); Wigler v. Elec. Data Sys. Corp., 108 F.R.D. 204 (D. Md. 1985).

(2) Responses to requests for admission

In responding to a request for admission, a party has several options. The responding party may

(1)do nothing, in which case the matter may be deemed admitted after 30 days (or 40 days if the requests were served on defendant with the summons and complaint);

(2)admit the matter set forth in the request;

(3)specifically deny the matter set forth in the request;

(4)provide a qualified answer, for example, denying a portion of the matter requested while admitting the remainder;

(5)serve a statement setting forth in detail why the party cannot truthfully admit or deny the matter. If the inability to admit or deny is based on a lack of relevant information or knowledge, the responding party must specifically state that he or she has made reasonable inquiry and that the information known or readily obtainable is insufficient to enable the party to admit or deny the matter requested;

(6)object to the request and state the reasons for the objection;

(7)move for an extension of time in which to respond to the request; or

(8)move for a protective order.

(a)Failure to file a response

CR 36 explicitly provides that the failure to answer or respond to a request within the prescribed time automatically results in admission of the matter. The matter admitted for failure to respond is conclusively established under CR 36(b). Even an admission caused by an inadvertent failure to respond is considered an evidentiary admission that is properly submitted to a jury. Pickens v. Equitable Life Assurance Soc'yofU.S., 413 F.2d 1390 (5th Cir. 1969). Arequesting party may also rely on admissions obtained through the failure to respond to support a dispositive motion. Melby v. Hawkins Pontine, Inc., 13 Wn.App. 745, 537 P.2d 807 (1975); Charbonneau v. Wilber Ellis Co., 9 Wn.App. 474, 512 P.2d 1126 (1973); Chi. Dist. Council of Carpenters Pension Fund v. P.M.Q.T. Inc., 169 F.R.D. 336 (N.D. 111. 1996).

In the absence of an order shortening the 30-day response period, the failure to respond when the respondent has less than 30 days before trial will not result in an admission. Waltzer v. Transidyne Gen. Corp., 697 F.2d 130 (6th Cir. 1983).

The trial court has discretion to grant an extension of the 30-day period for responding to a request for admission. The extension may be granted even after the 30-day period has expired. Santos v. Dean, 96 Wn.App. 849, 982 P.2d 632 (1999), review denied, 139 Wn.2d 1026 (2000). The two-part test of CR 36(b) applies in determining whether to grant an extension of the 30-day period of CR 36(a) for responding to a request for admission. Under this test, the court considers whether permitting the extension will advance the presentation of the merits of the case and whether the extension will prejudice the opposing party. Id.

Prejudice supporting the denial of an extension of the 30-day period of CR 36(a) for responding to a request for admission relates to the difficulty the party opposing the extension may face because of the sudden need to obtain evidence to prove a matter that had been admitted. The necessity of convincing the trier of fact of the matter's truth is insufficient. Id.

Unanswered requests for admission, which are deemed admitted under CR 36, will not bind a coparty Berg v. Ting, 68 Wn.App. 721, 725 n.2, 850 P.2d 1349 (1993), rev'd on other grounds, 125 Wn.2d 544, 886 P.2d 564 (1995).

Finally, when the failure to timely respond to a request for admission was induced or was waived by the requesting party, a motion for withdrawal of deemed admissions may be justified. See Melby, 13 Wn.App. at 748.

(b)Admissions

In addition to admissions resulting from a failure to respond, a party may expressly admit a request. Further, a matter may be deemed admitted if a responding party makes only a partial response to a request and does not object to or deny the balance of the request or if an improper response is made. Villarosa v. Mass. Trustees of E. Gas & FuelAssocs., 39 F.R.D. 337 (E.D. Pa. 1966); see also Advisory Committee's Note to Amended Rule 36, Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery 1969, 48 F.R.D. 530, 534 (1970).

(c)Denials

Denials to requests for admission should be "forthright, specific and unconditional." 8B Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure §2260, at 359 (3d ed. 2010). If they are not, the court may treat the denial as an admission. Courts have found general denials regarding the accuracy of a statement in a request for admission as well as evasive answers to be insufficient. S. Ry. Co. v. Crosby, 201 F.2d 878 (4th Cir. 1953); Riordan v. Ferguson, 147 F.2d 983 (2d Cir. 1945). For example, in United States v. Schine Chain Theaters, Inc., 4 F.R.D. 109 (W.D.N.Y. 1944), the court held that a response that denied a statement on the grounds that it was "inaccurate, irrelevant, incompetent and/or immaterial, or because it is argumentative and calls for a conclusion," or because defendants had "no competent knowledge of such statement," did not constitute a specific denial under CR 36. Schine, 4 F.R.D. at 111-12. The court also held that this response did not provide the required detailed reasons why the statement could not be truthfully admitted or denied. Id.

(d)Qualified responses

There may be requests that include two or more distinct factual matters. CR 36(a) provides that "when good faith requires," a party must qualify an answer or deny only part of the request. In this situation, the party should specify the part that is true and admit it, and qualify or deny only the remaining portions. Havenfield Corp. v. H&R Block, Inc., 67 F.R.D. 93 (W.D. Mo. 1973).

(e)Explanatory statements

Sometimes a party will not know whether the matter in a request is true and therefore cannot admit or deny it. In these circumstances, CR 36(a) permits a party to respond3to a request by setting forth "in detail the reasons why the answering party cannot truthfully admit or deny the matter." A party's failure to state the reasons why it cannot admit or deny a request invites a court to treat the matter as admitted or to order a further answer. Han v. Food & Nutrition Serv., 580 F. Supp. 1564 (D.N.J. 1984); Princess Pat, Ltd. v. Nat'l Carloading Corp., 223 F.2d 916 (7th Cir. 1955).

Since the 1972 amendments to CR 36, a party may not merely claim lack of information or knowledge to admit or deny a request. Instead, a party must explain that a reasonable inquiry has been made and that the information known or readily obtainable is insufficient to enable the party to either admit or deny the request. The advisory committee note, in discussing the 1970 amendment to FED. R. CIV. P. 36 (incorporated into the 1972 amendments to CR 36), explains this obligation on the responding party as follows:

The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not have the burden of "proving" the other side's case. The revised rule requires only that the answering party make reasonable inquiry and secure such knowledge and information as are readily...