Delaware requests for admission: silence admits, and an admission is conclusive

Requests for admission are the one discovery device that can lose a case by inaction. In Delaware, "The matter is admitted unless, within 30 days after service of the request … the party to whom the request is directed serves … a written answer or objection" — and once admitted, Rule 36(b) makes it "conclusively established".

No motion is needed to convert silence into an admission. It happens by operation of the rule.

The deadline, and the defendant's floor

Del. Super. Ct. Civ. R. 36(a):

The matter is admitted unless, within 30 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, but, unless the Court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant.

The 45-day floor runs from service of the complaint, not from the request — so its value depends entirely on how early the requests arrive. Served in week one, it gives a defendant real time; served in month three, it gives nothing.

Requests may be served on the plaintiff after commencement, and on any other party with or after service of the summons and complaint.

What may be requested

Rule 36(a) covers "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."

Copies of documents must be served with the request "unless they have been or are otherwise furnished or made available for inspection and copying".

Each matter must be separately set forth, and — a Delaware formatting requirement — "Each request for admission shall be restated as numbered and shall be answered separately and fully in writing."

What an answer has to do

The rule is specific about the quality of a denial.

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 an 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.

Two escape routes are closed off.

Lack of knowledge, without inquiry. A 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." The statement about inquiry has to be made.

"This is for trial." A party who thinks the request goes to a genuine trial issue "may not, on that ground alone, object to the request". The available response is to deny it, or explain why admission and denial are both impossible — "subject to the provisions of Rule 37(c)", which is where the cost of a wrong denial lives.

Testing the answers

Where an answer or objection looks inadequate, the requesting party "may move to determine the sufficiency of the answers or objections". The Court's options are laid out:

Expenses on such a motion follow Rule 37(a)(4) — which in Delaware means fees are the default in whichever direction the motion goes. See the Delaware motion to compel.

The effect, and getting out of it

Rule 36(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.

"Conclusively established" — not evidence to be weighed, but a fact removed from the case.

Withdrawal is possible, on motion, and the rule sets a two-part test: the Court may permit it "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 of prejudice. It is also "Subject to the provisions of Rule 16 governing amendment of a pretrial order", so an admission carried into a pretrial order is harder to shed.

Notice where the burden sits. The moving party shows the merits would be served; the party holding the admission must then show prejudice.

The price of a wrong denial

Rule 37(c) is what makes a considered denial worth the effort:

Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the Court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

The Court "shall make the order" unless one of four things is shown:

The award is mandatory subject to those exceptions, and it is measured by the cost of proving the point — which can far exceed the cost of the discovery itself.

Limb (3) is the practical protection: a denial made on a genuine belief that you will win the point is not sanctionable merely because you lose it.

On the special tracks

Requests for admission are rationed on Delaware's expedited commercial track. Rule 127(e) allows ten requests, "with any sub-part to be counted as a separate request for admission", served within thirty days of the last answer, with responses due in twenty. See Delaware Summary Proceedings for Commercial Disputes.

Where this connects

For the parallel deadlines on interrogatories and document requests — the same 30 days, the same 45-day defendant's floor — and for how Rule 6 counts the days, see Delaware discovery deadlines.

Admissions are one of the materials a court weighs on summary judgment under Rule 56(c), which makes them a route to judgment as well as a trial shortcut. See Delaware summary judgment, where cross motions are deemed a stipulation to decide the case on the papers.

How Delaware compares

A short checklist

1. Diary 30 days from service — or, if you are a defendant served with requests early, 45 days from the complaint.
2. Do not let the date pass. Silence admits, with no motion required.
3. Restate each request in your response.
4. Make denials meet the substance. A general denial of a compound request will not do.
5. If you cannot answer, say you made reasonable inquiry — the rule requires that statement.
6. Do not object merely because the matter is contested. That ground alone is unavailable.
7. Weigh Rule 37(c) before denying. If they prove it, you may pay the cost of the proof.
8. If you need out of an admission, move promptly — and before it reaches a pretrial order.

Where these rules live

• Del. Super. Ct. Civ. R. 36 — Requests for admission
• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery
• Del. Super. Ct. Civ. R. 127 — Depositions and discovery

This page explains what the rules say. It isn't legal advice.