By Bryan R. Findley
Early in their careers, most attorneys are taught to pay particular attention to requests for admission, the least understood of the holy trinity of written discovery. This is necessary because, at first blush, requests for admission appear simpler than interrogatories and requests for production. Unlike interrogatories, requests for admission require little narrative explanation when responding, and counsel may sign on behalf of the client. And unlike requests for production, there are only rarely hundreds of pages of documents to review and produce or make available for inspection when responding to requests for admissions. Why then are attorneys taught so early to treat responses to requests for admission as if they were porcelain dolls?
Federal Rule of Civil Procedure 36 and Indiana Trial Rule 36 both contain the disquieting statement: the “matter is admitted unless.” Fed. R. Civ. Pro. 36(a)(3); Ind. R. Trial P. 36(A). As a result, once issued, the fuse is lit and only the responding party’s timely response can prevent admission. If a party fails to respond to requests for admission those statements are deemed admitted, factually true, and can cause catastrophic consequences to the responding party’s case. With the increased mobilization of these tools by the plaintiff’s bar, understanding a key difference between the Federal and Indiana rules regarding requests for admission is vital if the defense practitioner is to avoid costly missteps.
The Key Difference between the Federal Rules and Indiana Trial Rules
While similar, the key difference is that under the federal rule, “[r]equests to admit may not be used to establish legal conclusions,” Black v. Friedrichsen, No. 1:19-cv-00307-WCL-SLC, 2021 U.S. Dist. LEXIS 9003, at *23 (N.D. Ind. Jan. 19, 2021), whereas under the Indiana Trial Rules, “[r]equests for admission can establish legal conclusions.” Gen. Motors Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind. 1991). Indeed, the Indiana Supreme Court in General Motors conclusively established that requests for admission under Indiana state rules of procedure are more expansive than their federal counterparts. But, before getting to exception, putting into perspective how the Indiana District Courts understand the rule will help a better understanding of Rule 36.
F.R.C.P. 36 and the Lack of Legal Conclusions
Beginning with the basics of issuance, “requests for admission should be simple and direct so that they can be admitted or denied with little or no explanation or qualification.” Donald v. Outlaw, No. 2:17-CV-32-TLS-JPK, 2021 U.S. Dist. LEXIS 76677, at *18 (N.D. Ind. Apr. 21, 2021) (internal citations and punctuation omitted). But the purpose of requests for admission is twofold. It serves as a discovery device and “to narrow the issues to be resolved at trial by effectively identifying and eliminating those matters on which the parties agree.” Id. at *18-19. To be clear, the language of “Rule 36(a)(1)(A) provides that: ‘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….’” McNary v. Hamer, No. 1:14-cv-01807-WTL-TAB, 2016 U.S. Dist. LEXIS 102364, at *3 (S.D. Ind. Aug. 4, 2016). The onus is on the responding party to “fairly respond to the substance of the matter” and “specifically deny” the request “or state in detail why the answering party cannot truthfully admit or deny it.” Donald v. Outlaw, 2021 U.S. Dist. LEXIS 76677, at *19 (citing Fed. R. Civ. Pro. 36(a)(4)). Although a responding party “may assert lack of knowledge or information as a reason for failing to admit or deny,” it may do so only “if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Id. at *18. And as is well established, “[w]hile under most circumstances, a  litigant’s failure to respond to requests for admissions under Rule 36 results in those statements of fact being established.” McNary v. Hamer, 2016 U.S. Dist. LEXIS 102364, at *3. What then does the general proposition that requests for admissions cannot be used to establish a legal conclusion mean? The McNary case perfectly illustrates impermissible usage of requests for admissions to establish a legal conclusion.
The McNary decision presents a straightforward 42 U.S.C. § 1983 Fourth Amendment excessive force case. The pro se plaintiff alleges that a law enforcement officer used excessive force, breaking her left arm, while she was being handcuffed during her arrest in Indianapolis. Id. at *1. In moving for summary judgment, the law enforcement officer “relie[d] solely on [plaintiff’s] failure to respond to requests for admissions to establish facts in support of his defense that he did not use excessive force against [plaintiff] during her arrest.” Id. at *2-3. Specifically, one such request read, “On June 18, 2014, Defendant and other [law enforcement officers] used reasonable force during and after the lawful seizure, handcuffing and arrest of [P]laintiff.” Id. The district court denied the law enforcement officer’s motion for summary judgment “because the overriding problem with the requests for admissions is that [the law enforcement officer] is attempting to use them to establish the ultimate legal question.” Id. at *6.
In sum, the federal rules allow a litigant to walk treacherously close to the line of establishing a “legal conclusion” through the use of requests for admission, but the federal rules do not permit a litigant to pass that bright line. Indiana state court, on the other hand, has no such bright line.
Indiana Trial Rule 36 and the Inclusion of Legal Conclusions
In 1991, the Indiana Supreme Court clarified a key difference between the Federal Rules of Civil Procedure and the Indiana Trial Rules: Requests to admit legal conclusions are disallowed in federal court but are permitted in state court. Although before the McNary decision the difference between the rules had been tangentially discussed by the Indiana Court of Appeals and mentioned in practice guides, the Indiana Supreme Court’s decision appears to be the first time the Indiana Supreme Court conclusively cemented the difference. In doing so, the Indiana Supreme Court provided a lengthy analysis contrasting the otherwise similar rules.
Addressing the breadth of Indiana Trial Rule 36, the Court recognized “[b]y its express terms, the rule permits requests for admission addressed to ‘any matters’ rather than ‘any facts.’” Gen. Motors Corp., 573 N.E.2d at 888. “It further prohibits objection based on the ground that the requested admission presents a genuine issue for trial.” Id. When specifically weighing the specific language of the rules, the Court identified, “[t]he corresponding Fed. R. Civ. P. 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.’” Id. Contrasting with “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.’” Id. To reach its ultimate conclusion, the Court focused on an important difference.
The Court recognized that, “[s]ignificantly, Indiana’s T.R. 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.” Id. Ultimately concluding it is “[t]his difference [that] 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.” Id.
Opining on the justification for the difference between the rules, the Court elaborated,
[u]nder our rules of procedure, the final determinative legal issues in a case are often not identified in its early stages. The initial complaint may consist of a short and plain statement of a proper claim, along with a demand for the relief sought, and claims may be asserted alternatively or hypothetically. Ind. Trial Rule 8(A),(E). In response, a defendant will answer the allegations of a complaint by general or specific denial of designated averments, or by stating a lack of knowledge or information sufficient to form a belief as to the truth thereof. T.R. 8(B). It is then expected that the parties will use interrogatories, depositions, requests for production, physical and mental examinations, requests for admission, and pretrial procedure to develop, simplify, and otherwise formulate the issues for trial.
Given the relative ease of asserting a claim in Indiana state court, “[r]equests for admission perform a vital role in permitting the parties to identify those legal contentions and issues for which evidentiary proof will not be necessary.” Id. And “[p]roperly 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. To achieve these purposes, T.R. 36 requests are not limited to purely evidentiary matters, but may also seek admissions as to legal issues, contentions, and conclusions, if related to the facts of the case.” Id. But what does that mean in practice?
Theoretically, the answer could be found back in the McNary case. Looking solely at the rejected request for admission, the law enforcement officer may have been able to use the plaintiff’s admission that they used “reasonable force” in support of their argument against the plaintiff’s claim of unreasonable force. But, more interestingly, an unpublished (and vacated due to transfer) 2011 Indiana Court of Appeals opinion illustrates in practical terms requests for admissions that seek legal conclusion and some derivate complications.
In 2011, the Indiana Court of Appeals reversed and remanded the grant of summary judgment in a case involving Indiana’s Guest Statute. I.C. § 34-30-11-1. This statute bars claims against an operator of a moving vehicle brought by family members for damages sustained when being transported without payment and the injured family member was “in or upon” the motor vehicle. Id. In Clark v. Clark, a father and son were traveling in a vehicle to arrive at a destination to perform a task. Clark v. Clark, 2011 Ind. App. Unpub. LEXIS 958, at *1 (Ct. App. July 19, 2011). When they arrived at their destination, the son exited the vehicle to aid the father in parallel parking the vehicle. Id. The son positioned himself between the father’s vehicle and another vehicle and signaled to the father to stop. Id. at *1-2. Instead of breaking, the father hit the accelerator and pinned the son between the vehicles, causing him serious leg injuries. Id. at *2. The son sued the father, but the trial court granted the father’s motion for summary judgment, finding the Indiana Guest Statute barred the son’s claim. Id. The son appealed, leaving the Indiana Court of Appeals to parse requests for admission that address the ultimate legal issue and how they apply to the meaning of in or upon as used in the statute.
Because the Indiana Guest Statute bars claims when the injured plaintiff was “in or upon” the vehicle, the son issued two requests for admission from the father. Id. at *5. The son asked the father to admit that the son was “not in” the vehicle and “not upon” the vehicle at the time of the accident, which the father admitted. Id. In a 2-1 decision, the Indiana Court of Appeals reversed the grant of summary judgment and remanded to the trial court for further proceedings. Id. at *7. Writing for the majority, Judge May addressed the father’s objections to his admissions that the son was not “in” or “upon” the vehicle at the time of the accident because the requests were legal conclusions. Id. at *6-7. The Court, relying on Gen. Motors Corp., held that requests for admission as to legal conclusions were permitted, and because father admitted that the son was neither “in or upon” the vehicle, his admissions were dispositive of the affirmative defense. Id. at *7. Judge Vaidik, in a concurring opinion, found that the term in or upon of the Indiana Guest Statute was unambiguous, could be taken at its plain meaning, and when applied to the undisputed facts renders the Indiana Guest Statute unusable by the son. Id. at *7-9. However, Judge Robb’s dissenting opinion presented an interesting issue regarding interpreting what is, or is not, a legal conclusion.
In dissent, Judge Robb first analyzed the father’s full responses to the requests for admission and found that they were not unequivocal admissions as required by the rule. Id. at *10. But the crux of Judge Robb’s dissent looked at the meaning of the words in and upon and whether in the context of this case they were to be considered in a generic sense or a legal term of art. Id. at *11. Judge Robb concluded that the father’s admissions were used in a generic sense as opposed to prior precedent that held upon meant “in direct furtherance of the journey.” Id. at *13 (citing KLLM, Inc. v. Legg, 826 N.E.2d 136 (Ind. Ct. App. 2005)). As noted at the onset, the Indiana Supreme Court resolved the discrepancies illustrated by the divided Indiana Court of Appeals by accepting transfer, holding that in or upon should be taken at its plain meaning, disapproved the holding in KLLM, and reversed and remanded the trial court’s grant of summary judgment. Clark v. Clark, 971 N.E.2d 58, 62 (Ind. 2012). But illustrating the complex nature of the issue, the Supreme Court was not unanimous — two of five justices dissented and found Judge Robb’s dissenting opinion correct and would have upheld the trial court’s decision. Id. To contextualize the Clark v. Clark opinions, the Indiana Court of Appeals in a 2-1 decision and the Indiana Supreme Court in a 3-2 decision turned on the interpretation of a party’s interpretation of three words — in or upon — when responding to requests for admission that touched on the ultimate legal issue.
What, then, is the parting advice for a defense practitioner when the realization hits that the responses to requests for admission were due yesterday? After taking a minute (or ten) to ride out the panic attack, look to the graciousness of opposing counsel and to the rules. Most practitioners will be professional and understand a delay in responding and grant extra time. Also, both the federal rules and Indiana trial rules have release valves to put back together issues caused by an untimely response. A litany of case law exists on those topics. As illustrated, there is significant reason that attorneys are taught early to pay particular care for requests to admit under Rule 36. The best advice is to be extra careful, recognize that jurisdiction matters, and be sure to pay attention to the precise language of the request. In federal court, requests for admissions cannot reach the ultimate legal question; in state court, the ultimate legal question is not out of reach.•
Mr. Findley is an associate in the Indianapolis office of Cassiday Schade. The opinions expressed in this article are those of the author.