Ask and You Shall Receive: Rule 36 and its Scope Under Indiana Law

by Jon Noyes (Attorney Profile)
Wilson Kehoe Winingham LLC
2859 N. Meridian St.
Indianapolis, IN 46208
(317) 920-6400
wkw.com


A litigator is representing a client in a personal injury case where the client has suffered significant injuries. Although the litigator has strong evidence that the client was injured, the damage award could vary by a wide margin. The litigator would like to narrow the lower margin without sacrificing the higher margin, but is not sure how to do so. An interrogatory asking the defendant to place a value on the client’s damages would certainly be objected to. Nor would the defendant’s deposition prove fruitful because the defendant cannot be expected to accurately value the plaintiff’s claim on the spot. Rather, the litigator may find the solution through requests for admissions.

Requests for admission are a powerful but underutilized discovery tool that allow attorneys to ask an opposing party to admit any matter relevant to the case and not protected by privilege. [1]. Unlike the Federal Rules, Indiana does not limit these matters to enumerated categories. [2]. Instead, all non-privileged, relevant matters are proper, including “an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.” [3].  This allows attorneys to significantly clarify their adversaries’ contentions and gain the upper hand at trial.

I.     AN OVERVIEW OF RULE 36 OF THE INDIANA RULES OF TRIAL PROCEDURE

Under Rule 36 of the Indiana Rules of Trial Procedure, an attorney may request that an opposing party admit “the truth of any matters within the scope of Rule 26(B) set forth in the request, including the genuineness of any documents described in the request.” [4]. After receiving the request, the opposing party must admit or deny the matter. [5]. Its answer must meet the substance of the question. [6]. It cannot object merely on the basis that the request “presents a genuine issue for trial.” [7].

A party to whom requests for admissions are directed has thirty days to respond. [8].  If the opposing party denies the request, then it adopts that denial. [9].  However, if it admits the request or fails to respond within thirty days, then the matter is deemed conclusively established. [10].  It may be used as substantive evidence at trial. [11].

II.     SCOPE OF INQUIRY FOR REQUESTS FOR ADMISSION IN INDIANA AND IN FEDERAL COURT

The broad scope of requests for admission in Indiana is best put into context by comparing Rule 36 of the Indiana Rules of Civil Procedure to Rule 36 of the Federal Rules of Civil Procedure. Federal Rule 36 states:

“(a) Scope and Procedure.
(1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about either; and
(B) the genuineness of any described documents.” [12].

This rule is limited in scope by expressly enumerated terms. [13].  If the request for admission exceeds these enumerated terms, such as asking for an opinion or interpretation of law, then it is improper. [14].

Indiana Trial Rule 36’s language, on the other hand, allows requests for admission a broad scope of inquiry. It states in relevant part:

“(A) Request for admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(B) set forth in the request, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.” [15].

Unlike Federal Rule 36, this rule does not contain the language:  “relating to . . . facts, the application of law to fact, or opinions about either.” [16].  Instead, the scope of inquiry for Indiana Trial Rule 36 is only limited to “matters within the scope of Rule 26(B).” [17].

Rule 26(B) of the Indiana Trial Procedures provides a nearly limitless number of subjects that may be inquired about through Indiana Trial Rule 36. This includes insurance agreements, facts about retained experts, and any other matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. [18].

If the request for admission relates to any of these topics, then it is fair game. [19].

III.     INTERPRETATION OF INDIANA TRIAL RULE 36 BY INDIANA COURTS

Indiana courts have interpreted Rule 36 to grant it an expansive scope of inquiry. In General Motors Corporation, Chevrolet Motor Division v. Aetna Casualty & Surety Company, [20] the Supreme Court of Indiana held that “the Indiana rule [is] more expansive than the federal rule and permits a request for admission regarding an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.” [21].  In that case, the plaintiff-appellee brought a product liability action against the defendant-appellants to recoup money that it had paid out on behalf of its insured. [22].  The plaintiff-appellee propounded a request for admission to the defendant-appellants asking them to admit that the product was defective and that warranties were breached. [23].  Attached to the request for admission were reports by engineering consultants that inspected the product after the incident. [24].  One of the defendant-appellants failed to answer the request for admission on time, which resulted in admissions, so the plaintiff-appellee filed for summary judgment. [25].  It was granted. [26].

On appeal before the Supreme Court of Indiana, the defendant-appellees contended that the requests for admissions went beyond the scope of Indiana Trial Rule 36 because it requested admissions on issues that were ultimately legal conclusions. [27].  The court disagreed and instead concluded that Indiana Trial Rule 36’s language allowed for it to cover a broad scope of subjects. [28].  Moreover, the court reasoned that final determinative legal conclusions are usually not identified when a suit is filed. [29].  After written discovery and depositions, the parties are in a better position to peel away secondary issues. [30].  Requests for admission facilitate this by allowing parties to identify issues for which presentation of evidence at trial is not necessary. [31].  “Properly used, requests for admissions simplify pre-trial investigation and discovery, facilitate elimination of unnecessary evidence at trial, and reduce the time and expense demands upon the parties, their counsel and the courts.” [32].  Thus, the plaintiff-appellee’s requests were proper.

Similarly, in Snell v. Snell, [33] the plaintiff-appellee requested that the defendant-appellant admit that it failed to use reasonable care, that it should have realized its vehicle risked harm to the decedent, and that the decedent was not an employee of the defendant-appellant. [34].  The defendant-appellant failed to answer within thirty days, but argued that the requests for admission were improper because they sought legal conclusions. [35].  Citing General Motors Corporation, the court disagreed and held that “it was not improper to request admissions posed in the form of legal conclusions.” [36].  Once again, the request was proper.

IV.     APPLYING INDIANA TRIAL RULE 36 TO LITIGATION

Indiana Trial Rule 36 provides attorneys with the opportunity to clarify their opponent’s contentions and gain the upper hand at trial. Turning back to the litigator discussed in the first section, a well-crafted set of requests for admission could solve the litigator’s problem. For example, the litigator could propound a set of requests for admissions asking the defendant to admit that the plaintiff suffered a meager amount in damages and then increase that amount in each subsequent request until the amount arrives at a point of the litigator’s choosing.

The defendant will be loath to deny that the plaintiff suffered any amount of damages; it will likely admit that the plaintiff will be owed something if the verdict is in plaintiff’s favor. [37].  The admission becomes a settled matter at trial and, at the very least, provides the litigator with a range to present to the jury. Moreover, the defendant is forced to continue to admit that the plaintiff suffered an escalating amount of damage until it can make a denial in good faith. The more admissions it makes, the narrower the litigator’s margins.

That is not all. Ostensibly, requests for admission can be used to demand a party to admit that a text is authoritative in a medical dispute. They can be used to determine whether the opposing party agrees that a case is relevant in determining an issue for summary judgment. If the attorney wants to keep out testimony because it is inadmissible hearsay, a request for admission can be the first line of attack. When an attorney wants to define a word used in a contract with a certain dictionary, the attorney can turn to a request for admission.

Although the possibilities are not boundless, Indiana Trial Rule 36 presents attorneys with a powerful tool to clarify issues before trial. Additionally, it allows attorneys to attempt to shore up their positions with little risk of harm. It is a powerful but underutilized tool that deserves more recognition among Indiana attorneys.


[1]. IND. R. TR. P. 36(A).

[2]. Id.; accord Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind. 1991).

[3]. Gen. Motors Corp., 573 N.E.2d at 888 (citation omitted).

[4]. IND. R. TR. P. 36(A).

[5]. Id. The opposing party may also aver that it cannot truthfully admit or deny the request, but must give reasons why. Id. It cannot state that it lacks the information necessary to answer the request unless it makes a reasonable effort to discover the answer.

[6]. Id.

[7]. Id.

[8]. Id.

[9]. See id.

[10]. IND. R. TR. P. 36(B). The trial court may, however, withdraw the admission in limited circumstances. Id.

[11]. Ind. Civil Rights Comm’n v. Wellington Village Apartments, 594 N.E.2d 518, 528 (Ind. Ct. App. 1992).

[12]. FED. R. CIV. P. 36(a).

[13]. Id.

[14]. See, e.g., Minn. Mining & Mfg. Co. v. Norton Co., 36 F.R.D. 1, 3 (E.D. Ohio 1964) (asking for an opinion is improper); Fuhr v. Newfoundland-St Lawrence Shipping Ltd., Panama, 24 F.R.D. 9, 13 (S.D.N.Y. 1959) (requests regarding interpretations of law are improper).

[15]. IND. R. TR. P. 36(A).

[16]. FED. R. CIV. P. 36(a).

[17]. IND. R. TR. P. 36(A).

[18]. IND. R. TR. P. 26(B)(1).

[19]. See IND. R. TR. P. 36(A).

[20]. 573 N.E.2d 885 (Ind. 1991).

[21]. Id. at 888 (citations omitted).

[22]. See id. at 886.

[23]. Id. at 886, n.1.

[24]. Id. at 889.

[25]. Id. at 886.

[26]. Id. at 887.

[27]. Id. at 888.

[28]. Id. (“By its express terms, the rule permits requests for admission addressed to ‘any matters’ rather than ‘any facts.’  It further prohibits objection based on the ground that the requested admission presents a genuine issue for trial. The corresponding [Federal Rule of Civil Procedure] 36, permits requests for admission ‘of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact including the genuineness of any documents described in the request.’  In contrast, the counterpart language in the Indiana rule authorizes requests for admission ‘for purposes of the pending action only, of the truth of any matters . . . including the genuineness of any documents described in the request.’ Significantly, Indiana’s [Trial Rule] 36 does not incorporate the phrase ‘that relate to statements or opinions of fact or of the application of law to fact’ contained in the federal rule. This difference makes the Indiana rule more expansive than the federal rule and permits a request for admission regarding an opinion, a contention, or a legal conclusion, if the request is related to the facts of the case.”) (citations omitted).

[29]. Id.

[30]. Id.

[31]. Id.

[32]. Id.

[33]. 581 N.E.2d 463 (Ind. Ct. App. 1991).

[34]. Id. at 465, n.3.

[35]. Id. at 465.

[36]. Id.; see also Cross v. Cross, 891 N.E.2d 635, 641 (Ind. Ct. App. 2008) (party could seek admission that minor was emancipated under Indiana statute); City of Muncie v. Peters, 709 N.E.2d 50, 52 (Ind. Ct. App. 1999) (request for admission that police officer was the only officer not indemnified for conduct in the scope of duties); Hyundai Motor Co. v. Stamper, 651 N.E.2d 803, 805 (Ind. Ct. App. 1995) (party could seek admission that an article accurately quoted and summarized statement made by corporation president); Brown v. Union Oil Co. of Cal., 406 N.E.2d 1218, 1219-20 (Ind. Ct. App. 1980) (party asked to admit agency).

[37].  If the defendant denies that the plaintiff suffered any damage, the denial can be used to tarnish the defendant’s credibility at trial.  If the damages can be proven ahead of trial, the defendant could be subject to sanctions.  See Hyundai Motor Co. v. Stamper, 651 N.E.2d 803, 808-09 (Ind. Ct. App. 1995) (sanctions awarded to plaintiffs after they proved defendant’s denial was improper).

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