C.R.C.P. 36

History

Source: (a) amended and adopted April 14, 1994, effective January 1, 1995, for all cases filed on or after that date; committee comment approved June 10, 1994; (a) amended and adopted October 30, 1997, effective January 1, 1998; (a) 2 nd paragraph amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b). Cross references: For scope of discovery, see C.R.C.P. 26(b); for award of expenses of motion to determine the sufficiency of answer or objections, see C.R.C.P. 37(a)(4); for expenses on failure to admit, see C.R.C.P. 37(c). COMMITTEE COMMENT Revised C.R.C.P. 36 now interrelates with the differential case management features of C.R.C.P. 16 and C.R.C.P. 26. Because of man- datory disclosure, substantially less discovery is needed. A discovery schedule for the case is required by C.R.C.P. 16(b)(1)(IV). Under the require- ments of that Rule, the parties must set forth in the Case Management Order the timing and number of requests for admission and the basis for the necessity of such discovery with atten- tion to the presumptive limitation and standards set forth in C.R.C.P. 26(b)(2). There is also the requirement that counsel certify they have ad- vised their clients of the estimated expenses and fees involved in the discovery. Discovery is thus tailored to the particular case. The parties in the first instance and ultimately the Court are responsible for setting reasonable limits and preventing abuse. ANNOTATION I. General Consideration. II. Request. I. GENERAL CONSIDERATION. Law reviews. For article on Colorado Rules of Civil Procedure concerning depositions, dis- covery, and pretrial procedure, see 21 Rocky Mt. L. Rev. 38 (1948). For article, ‘‘Notes on Proposed Amendments to Colorado Rules of Civil Procedure’’, see 27 Dicta 165 (1950). For article, ‘‘Amendments to the Colorado Rules of Civil Procedure’’, see 28 Dicta 242 (1951). For article, ‘‘Depositions and Discovery, Rules 26 to 37’’, see 28 Dicta 375 (1951). For article, ‘‘Depositions and Discovery: Rules 26-37’’, see 23 Rocky Mt. L. Rev. 562 (1951). For article, ‘‘One Y ear Review of Civil Procedure and Ap- peals’’, see 39 Dicta 133 (1962). For comment on McGee v. Heim appearing below, see 34 Rocky Mt. L. Rev. 577 (1962). For article, ‘‘Plaintiff’s Advantageous Use of Discovery, Pre-Trial and Summary Judgment’’, see 40 Den. L. Ctr. J. 192 (1963). For article, ‘‘A Litigator’s Guide to Summary Judgments’’, see 14 Colo. Law. 216 (1985). C.R.C.P. 26 to 37 must be construed to- gether along with the requirement that the plaintiff establish a prima facie case for punitive damages, as a condition precedent to the plain- tiff’s right to discovery of defendant’s financial information. Leidholt v. District Court, 619 P.2d 768 (Colo. 1980). District court’s decision to deny a motion to withdraw or amend a response to a re- quest for admission is reviewed for abuse of discretion. Grynberg v. Karlin, 134 P.3d 563 (Colo. App. 2006). Civil discovery rules inapplicable to re- lease hearings. Based on §§ 16-8-115 to 16-8- 117 and on the special nonadversary nature of a release inquiry, the participants in release pro- ceedings do not have the broad right of discov- ery as provided in the rules of civil procedure. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976). Under C.R.C.P. 81(a), the procedure in re- lease hearings under § 16-8-115 is so inconsis- tent and in conflict with the rules of civil pro- cedure as to make civil discovery rules inapplicable to release hearings. People v. Dis- trict Court, 192 Colo. 225, 557 P.2d 414 (1976). Applied in Ricci v. Davis, 627 P.2d 1111 (Colo. 1981). II. REQUEST. When one fails to properly reply to re- quests for admissions, for the purpose of trial, those statements made in the request will be deemed admitted. McGee v. Heim, 146 Colo. 533, 362 P.2d 193 (1961); Cox v. Pearl Inv. Co., 168 Colo. 67, 450 P.2d 60 (1969); Moses v. Moses, 30 Colo. App. 173, 494 P.2d 133 (1971); Grynberg v. Karlin, 134 P.3d 563 (Colo. App. 2006). The genuineness of all documents not de- nied stands admitted under the provisions of this rule where a ‘‘request for admission of facts and genuineness of documents’’ is filed. Roemer v. Sinclair Ref. Co., 151 Colo. 401, 380 P.2d 56 (1963). There is no binding effect on the request- ing party of a request for admission pursuant to this rule and the response thereto. The purpose of this rule is to bind the party making the admission, not the party requesting it, and the submission of such a request and the re- sponse thereto admits nothing as to the request- ing party. Aspen Petroleum Prods., Inc. v. Zedan, 113 P.3d 1290 (Colo. App. 2005). An admission can constitute an adequate showing for the purpose of a summary judg- ment motion under C.R.C.P. 56. Roemer v. Sinclair Ref. Co., 151 Colo. 401, 380 P.2d 56 (1963); Cox v. Pearl Inv. Co., 168 Colo. 67, 450 P.2d 60 (1969); Cortez v. Brokaw, 632 P.2d 635 (Colo. App. 1981); Grynberg v. Karlin, 134 P.3d 563 (Colo. App. 2006). Lack of adherence to formalities in verify- ing answers which do not result in prejudice should not interfere with the determination of the issues on the merits. Swan v. Zwahlen, 131 Colo. 184, 280 P.2d 439 (1955). Late filings may be permitted. Where there is a request for admission, a late filing of a denial does not create a nonrebuttable presump- tion of the truth of the admitted fact, and late filings may be permitted where no prejudice is shown. Moses v. Moses, 180 Colo. 398, 505 P.2d 1302 (1973); Cortez v. Brokaw, 632 P.2d 635 (Colo. App. 1981); Sanchez v. Moosburger, 187 P.3d 1185 (Colo. App. 2008). Court should not have granted summary judgment based entirely on plaintiff’s deemed admission. Though plaintiff failed to timely reply to request for admission, plaintiff moved for an extension of time to reply and submitted a denial of the request, an affidavit, and documentary evidence before the court granted summary judgment. Sanchez v. Moosburger, 187 P.3d 1185 (Colo. App. 2008). Officials of an administrative agency can- not be compelled to answer requests for ad- missions concerning the procedure or manner in which they made their findings and rendered a decision in a given case. P .U.C. v. District Court, 163 Colo. 462, 431 P.2d 773 (1967). The only exception to this rule is where an allegation has been made and there is a clear showing of illegal or unlawful action, miscon- duct, bias, or bad faith on the part of the admin- istrative officials or a specific violation of an applicable statute. P .U.C. v. District Court, 163 Colo. 462, 431 P.2d 773 (1967).