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Posted by: Donald Paine on Mar 21, 2009

Journal Issue Date: Apr 2009

Journal Name: April 2009 - Vol. 45, No. 4

Tennessee Rule of Civil Procedure 36 is malpractice territory. As Churchill said at Leeds in 1942: "There are upon our journey dark and dangerous valleys through which we have to make and fight our way."

What can be requested? You can request that your opponent admit the truth of statements of fact (or "opinions of fact or the application of law to fact.") Moreover, you can serve copies of documents and ask for admissions of genuineness.

How early can you serve the requests? A plaintiff can serve them with the summons and complaint. A defendant can serve them anytime after commencement.

How much time do you have to respond? You must serve your responses within 30 days after you are served with requests. But if you were served by mail, the usual situation, you have 33 days to respond because of Rule 6.05. A failure to timely respond results in dire consequences. Read on.

Denials must be specific. Objections must state reasons. If you cannot truthfully admit or deny, tell why. If part of a requested admission fact is true and part false, "specify so much of it as true and qualify or deny the remainder."

If you simply do not know the truth, you must state that you have made reasonable inquiry. You cannot object on the ground that a matter presents a genuine issue for trial.

The death sentence is pronounced in Rule 36.02: "Any matter admitted under this rule is conclusively established ..." Oh, yeah, the judge can allow withdrawal. Don't count on it. And remember that silence for 33 days equals admission, conclusively.

Caselaw adds a requirement that the party who has obtained an admission must give the trial court pretrial notice of intention to introduce this evidence at trial. See Tennessee Department of Human Services v. Barbee, 714 S.W.2d 263 (Tenn. 1986). Justice Drowota wrote that admissions should be brought to the trial judge's attention in one of three ways:

  1. pretrial conference,
  2. motion for summary judgment, or
  3. "specific motion dealing with the requested admissions."

If you and I correctly traverse the Rule 36 valleys, we can go forward together on the journey about which Churchill spoke "into a sunlight broader and more genial and more lasting than mankind has ever known."  

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.