Pace v. Pace ( 1977 )

MAUGHAN, Justice

(dissenting):

It is my view the opinion as circulated subverts the object of Rule 36(a). For me, there is a distinction between interrogatories and requests for admissions. The purpose of interrogatories is to elicit information; while the objective sought by requests for admissions is to eliminate issues not really in dispute. The signal purpose of Rule 36(a) is to save valuable trial time.¹

In 4(A) Moore’s Federal Practice, Second Edition, page 36-12, the following is illustrative:

Giving a defective answer the automatic effect of an admission may cause un-

fair surprise. . . . Some courts, therefore, have entertained motions to rule on defective answers. They have at times ordered that amended answers be served, when the defects were technical, and at other times have declared that the matter was admitted. [Cases cited.] [Emphasis added.]

The rule as revised conforms to the latter practice.²

The foregoing comment is directed to the rule, after its 1970 amendment. As such, I take it to mean the revised rule conforms to the practice of declaring a defective answer an admission.

The penultimate paragraph of our Rule 36(a) is permissive, so far as the requesting party is concerned; and discretionary so far as the trial judge is concerned.

Under the facts of the matter at hand, it appears to me the contested answer to Request No. 3 is clearly defective for the reason it is not responsive to the request, because it is evasive and argumentative. In addition, the defect is not a mere technicality.

I think an answering party should not be allowed to defeat the rule by setting up a dichotomy, with a definite negative in an interrogatory, supplemented by an evasive answer to a request; which would appear to create an issue of fact immune to an attack by a motion for summary judgment.

The trial court had before it the interrogatory with its definite negative, the answer to the request with its evasive and ambiguous answer; and the discretion to order the admission or an amended answer. The court chose not to order an amended answer, and took the defective answer as an admission — I think correctly so.

If the request for admission had been difficult of answer or understanding, or a mere technicality; then it seems the court’s discretion should have been utilized. Here, however, the request is direct and not difficult to answer; or of such explanation as the rule tolerates — if the answering party has an explanation. It is my view the trial court should be sustained.

1 . McLaughlin v. Drackett Products Company, U.S. District Court, D.Mass., September 2, 1975, 20 F.R.Serv.2d 1081.

2 . Id. p. 36-13.