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Rule 36 – Requests for Admission

May 14, 2021 | Civil Procedure, Ohio

(A) Availability; procedures for use. 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 Civ. R. 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. 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 after service of the summons and complaint upon that party. The party serving the request for admission shall serve an electronic copy of the request on ashareable medium and in an editable format, by electronic mail, or by other means agreed to by the parties. A party who is unable to provide an electronic copy of a request for admission may seek leave of court to be relieved of this requirement.

(1) Each matter of which an admission is requested shall be separately set forth. The party to whom the requests for admissions have been directed shall quote each request for admission immediately preceding the corresponding answer or objection. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney.
(2) If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his or her answer, or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Civ. R. 37(C), deny the matter or set forth reasons why the party cannot admit or deny it.
(3) The party who has requested the admissions may move for an order with respect to the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Civ. R. 37(A)(4) apply to the award of expenses incurred in relation to the motion.
(B) Effect of admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Civ. R. 16 governing modification of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding.
(C) Document containing request for admission. If a party includes a request for admission in a document containing any other form of discovery, the party shall include a caption on the document that indicates the document contains a request for admission. A party is not required to respond to requests for admission that are not made in compliance with this division.

Ohio. Civ.R. 36

Effective:July 1, 1970; amended effective July 1, 1972;July 1, 1976;July 1, 2004;July 1, 2005; amended effective July 1, 2008; July 1. 2009; July 1, 2014; July 1, 2017; amended April 24, 2019, effective July 1, 2019.

Proposed Staff Notes (2019 Amendment)

Division (A)

Recognizing the advancements in technology that have occurred since the 2004 amendment to the rule, the amendment also changes the description of the type of electronic copy that shall be served from a copy that is “reasonably useable for word processing and provided on computer disk” to a copy “on a shareable medium and in an editable format.”

Staff Note (July 1, 2017 Amendment)

Civ.R. 36(A). Requests for admission.

The rule is amended to permit service of requests for admission on parties other than the plaintiff only after service of the summons and complaint upon that party and to disallow service of requests for admission with service of the summons and complaint.

Staff Note (July 1, 2014 Amendments)

Rule 36(A)(1) is amended to correct an oversight in the final publication of the 2012 amendments to the rule. Those prior amendments intended that requests for admission be served by electronic means making separate service of a printed copy unnecessary except for unusual circumstances. The final publication of the 2012 amendment inadvertently retained language from the prior rule stating that the designated time for responses runs from service of “a printed copy of” the requests. The quoted words were not intended to be included and are stricken. A similar correction is made to Civ. R. 33 with respect to interrogatories.

Staff Note (July 1, 2012 Amendment)

The introductory paragraph of Civ.R. 36(A) and the provisions of Civ.R. 36(A)(1) are amended to eliminate difficulties raised by the 2004 amendment to Civ.R. 36(A) that requires a party serving requests for admission to “provide” an electronic copy to the served party. This amendment is enabled by the 2012 amendment to Civ.R. 5(B) which permits documents after the original complaint to be served by electronic means.

Civ.R. 5(A) requires that copies of all documents in an action be “served” on the parties. When the Civ.R. 36 requirement for an electronic copy was established in 2004, there was no provision for “service” by electronic means and it was deemed impractical to require that an electronic copy be “served” by mailing a computer disk or otherwise delivering it by one of the other methods permitted under the existing Civ.R. 5(B). Thus the 2004 amendment to Civ.R. 36 provided that a printed copy must be “served” (by one of the methods listed under Civ.R. 5(B) ), and that an electronic copy also must be “‘provided’ on computer disk, by electronic mail, or by other means agreed to by the parties.” That requirement was problematic not only because of the required dual format but also in determining a party’s recourse when a paper copy was served but an electronic copy was not provided – a problem addressed by the 2009 amendment to Civ.R. 36.

The 2012 amendment simply requires that an electronic copy be served, which can be accomplished electronically under the 2012 amendments to Civ.R. 5(B), or by any other method provided under Civ.R. 5(B). Although service of a paper copy is no longer necessary, it is not prohibited and would be appropriate, for example, when a party who is unable to provide an electronic copy is relieved of that requirement by the court.

Similar amendments have been made to Civ.R. 33 relating to interrogatories.

Staff Note (July 1, 2009 Amendments)

Recognizing that computer word processors have replaced the typewriter, Rule 36 was amended in 2004 to delete the former “minimum one-inch space” requirement in favor of a requirement that the party requesting admissions provide the responding party with an electronic copy of the request for use in preparing a new computer-generated document containing both the requests and the responses. The 2004 amendment continued to require that the printed copy be served, and only required that the electronic copy be “provided” to the party served. The amendment further permitted the electronic copy to be provided by means other than those described in Civ. R. 5(B) for service, specifically including “by electronic mail.” Finally, the amendment permitted the court to relieve a party “who is unable to provide an electronic copy” of the duty to do so.

The 2004 amendment did not specify a consequence for the failure to provide an electronic copy. Because the time designated in the request for responding runs from service, and only the printed copy is served, the amendment left uncertain the obligations and appropriate remedy for a party served with a printed copy of requests for admission, but not provided with an electronic copy. The 2009 amendment specifies the consequence and appropriate remedy for this situation.

The amendment confirms that the period for responding, which is designated by the requesting party and cannot be less than twenty-eight days, shall run from the day of service of the printed copy, and that the failure to provide an electronic copy does not alter the response period. However, if before the designated period has expired, the responding party requests that the period be enlarged pursuant to Rule 6(B) because the requesting party has not provided an electronic copy, that reason shall constitute good cause for granting the requested extension, and the court’s order may require that an electronic copy be provided.

The amendment strikes a balance between the respective duties of the parties when a provision which merely makes it easier to transcribe the responses to a request for admission is not followed. It enforces the duty of the party requesting admissions to provide an electronic copy unless otherwise relieved of that obligation by the court. At the same it time makes it clear that a responding party served with a printed copy of a request for admissions cannot rely on the failure to receive an electronic copy as reason to do nothing and simply disregard the response time. A Civ. R. 6(B) request for enlargement of the period is an appropriate remedy for a responding party in this situation, and the amendment merely provides guidance in that regard. The rule states that the failure to receive an electronic copy constitutes good cause under Civ. R. 6(B). The amendment also confirms the court’s discretion to relieve a party of the duty to provide an electronic copy when unable to do so, for example, when compliance would be difficult for a pro se party.

Similar amendments were made to Civ. R. 33, addressing the failure to provide an electronic copy of interrogatories.

Staff Notes (July 1, 2008 Amendment)

The text of Civ. R. 36(A) is broken into three subparts. This is intended as a stylistic change only to make the material more accessible.

Staff Note (July 1, 2005 Amendment)

Rule 36(C) Document containing request for admission.

Civ. R. 36 is amended to require that a party include a specific caption on any document that includes one or more requests for admission. The amended rule recognizes that, unlike Civ. R. 33 (written interrogatories) and Civ. R. 34 (requests for production), Civ. R. 36 imposes a virtually self-executing sanction, i.e., admission by default, on a party that fails timely to respond. See generally Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66 (1985).

The Rules Advisory Committee is aware that parties intermix requests for admission with Civ. R. 33 interrogatories and Civ. R. 34 requests for production. See, e.g., Seecharan v. Macy, 1999 WL 980579, No. 75130 (8th Dist. Ct. App., Cuyahoga, 10-28-99) (no abuse of discretion to deny motion to deem matters admitted; “the trial court refused to countenance the obscuring of requests for admissions in the midst of other discovery requests”). The Committee believes that although there often are good reasons for combining requests for admission with other discovery requests, the nature of some discovery documents can cause requests for admission to be overlooked and result in inadvertent admissions by default. The amendment is intended to minimize this risk by requiring the propounding party to include, in the caption of the document, a clear notice that the document contains requests for admission. A party is not required to respond to requests for admission that are not made in compliance with division (C).

Staff Note (July 1, 2004 Amendment)

Rule 36(A) Availability; procedures for use.

The 2004 amendment added two provisions governing the service of and response to requests for admissions. New language was added to the second paragraph of division (A) that requires a responding party to quote the request for admission immediately preceding the party’s answer or objection. This provision ensures that the court and parties are not required to consult two documents or different parts of the same document in order to review the full text of a request for admission and the corresponding answer or objection. The provision is similar to the second sentence of S.D. Ohio Civ. R. 26.1.

To facilitate the responding party’s obligation to include the request for admission and answer or objection in the same document, the first paragraph of division (A) was modified to require the party submitting requests for admissions to provide the responding party with both a printed and an electronic copy of the requests for admissions. The electronic version must be provided in a format that will enable the responding party to readily include the requests for admissions and corresponding answers and objections in the same document without having to retype each request for admission. A party who is unable to provide an electronic copy of requests for admission may seek leave of court to be relieved of the requirement.

Corresponding amendments were made to Civ. R. 33(A) relative to interrogatories.

Rule 36(C) Form of answers and objections to requests for admissions.

The 2004 amendment deleted language that required a party submitting requests for admissions to allow sufficient space, not less than one inch, following each request for admission, in which the answering party could type an answer or objection. New language was added to division (A) governing the service of and response to requests for admissions.