REQUESTS TO ADMIT:PITFALLS & PRACTICALITES

Judge Lynn M. EganJudge Franklin U. Valderrama

July 19, 2013

What is a Request to Admit?

Requests for admission constitute discovery.

BUT…

They are different from other discovery devices because they are NOT designed to elicit evidence or further the goals of discovery.

Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 347 (2007)

Not All Discovery Provisions Apply

Even though requests to admit are discovery devices, not all discovery rules apply.

Supreme Court Rule 201(j) does not apply because judicial admissions are binding & cannot be controverted.

In What Types of Cases can Requests to Admit be used?

ALL civil cases unless there is a special statute to the contrary.

People v. Mindham, 253 Ill.App.3d 792, 796-797 (2d Dist., 1993)

Examples:

• Summary suspension hearing in DUI case

• Plenary order of protection

• Dissolution of marriage

• Mortgage foreclosure

• Tax deed petition

• Child support petition

• Small claims case – with prior leave of court per

Supreme Court Rule 287(a).

What Does Rule 216 allow?

The Rule allows a party to serve a written request for the admission of:

• The truth of any specified relevant fact

AND

• The genuineness of any relevant document

It Also Allows…

Use of PUBLIC RECORDS as evidence. The proferring party must:

• Seasonably notify the other party in writing & provide a copy of the records “as they are to be used.”

If otherwise admissible, the records are then admissible in evidence as admitted facts, unless • The adverse party challenges their accuracy under

oath in an affidavit that is served within 28 days after service of the notice.

It Does NOT Allow…

• A party to submit a request to admit to himself

OR

• To solicit an admission from a similarly aligned party.

What is the Purpose?

• To limit issues at trial by withdrawing admitted facts from contention;

• Eliminate the need for formal proofs;

• Allow for a more streamlined & efficient case.

What is a proper Rule 216 request?

One that asks for admission of any fact or the genuineness of any document that is relevant. Supreme Court Rule 216(c).

“The key question is whether a requested admission deals with a question of fact.”

Szczeblewski v. Gossett, 342 Ill.App.3d 344 (5th Dist., 2003)

It Doesn’t Matter That…

• The requested fact is an “ultimate” fact

• The request relates to an opinion

• The factual question gives rise to a legal conclusion

A Request is “factual” if…

It requires the finder of fact to “take some analytical step, no matter how small, from the contents of the admissions to the final conclusion that the party seeks to establish.”

Montalbano v. Rauschenberger, 341 Ill.App.3d 1075 (3d Dist., 2003).

NOT ALLOWED

Legal conclusions

They are improper in form & the failure to respond to such a request does not result in a judicial admission.

Robertson v. Sky Chefs, Inc., 344 Ill.App.3d 196 (1st Dist., 2003)

EXAMPLES

• Whether a party solicited another to complete certain work. PROPER

• “You have no defense to the repayment of this obligation.” IMPROPER

• Whether a party “breached” a contract or “failed to perform.”

IMPROPER

EXAMPLES

• The necessity & reasonableness of medical services & the reasonable cost of those services.

PROPER

• That the records of medical providers were kept in the ordinary course of business.

PROPER

• That defendant’s conduct caused the occurrence.PROPER

EXAMPLES

• Whether work was performed “well” or in a “good” & “workmanlike” manner.

PROPER

• That a certified estimate was “prepared by Apollo Insurance Company, acting as agent for its insured, Hasib Bangloria.”

PROPER

• That a certain amount of money was “due & owing.”PROPER , but…

EXAMPLES

• That a party had actual notice of another’s interest in certain property.

PROPER

• That a party had constructive notice of another’s interest in certain property.

IMPROPER

What are the Requirements of Rule 216?• Prepare a separate document containing only the

requests & documents sought to be admitted;

• Serve this document separate from other documents; and

• Put the following warning in a prominent place on the 1st page in 12-point or larger boldfaced type: “WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this document, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine.”

Number of Requests

The maximum number of requests a party may serve on another party is 30, unless the parties agree otherwise or the court so orders upon good cause shown. Supreme Court Rule 216(f).

If a request has subparts, each subpart counts as a separate request. Id.

SERVICE• Must be made upon the OPPOSING PARTY within 28 days

after the request is served.

• Supreme Court Rule 12 governs service & specifies that service is effective at different times, depending on the method used:

1. Mail – 4 days after mailing (Supreme Court Rule 12(c))

2. Facsimile or email – “on the first court day following transmission.” (Supreme Court Rule 12(e) & (f))

3. Third-party commercial carrier – 3rd business day after delivery to the third-party carrier. (Supreme Court Rule 12(d))

MOTIONS TO STAY DISCOVERY

Because requests to admit are discovery devices, responses are deferred once a motion to stay discovery has been granted.

The “good cause” requirement of Supreme Court Rule 183 does not apply in this situation.

DOD Technologies v. Mesirow Insurance Services, Inc., 381 Ill.App.3d 1042, 1055 (1st Dist., 2008)

SUPREME COURT RULE 183

• For “good cause shown” a trial judge may extend the time to respond to a request to admit.

• Such a motion may be brought “either before or after the expiration of the time.”

• The party seeking the extension bears the burden of establishing good cause by providing “clear, objective reasons why it was unable to meet the original deadline & why an extension should be granted.”

Vision Point of Sale, Inc. v. Haas, 226 Ill.2d 334, 348 (2007).

Vision Point of Sale “Clarified” Everything!

Before Vision Point of Sale, good cause could not be based on mistake, inadvertence or attorney neglect.

Although the Supreme Court expressly declined to define “good cause,” it made plain that its earlier ruling in Bright v. Dicke was never meant to mean that mistake, inadvertence or attorney neglect could not form the basis of good cause.

After Vision Point of Sale, mistake, inadvertence or attorney neglect MAY (or MAY NOT) constitute good cause.

GOOD FAITH INQUIRY BEFORE

ANSWERING

A party has “a good faith obligation to make a reasonable effort to secure answers to requests to admit from persons & documents within the party’s reasonable control…[including] the defendant’s attorney & insurance company investigators or representatives.”

Szczeblewski v. Gossett, 342 Ill.App.3d 344 (5th Dist., 2003).

IF YOU CANNOT ADMIT OR DENY…

YOU MUST EXPLAIN WHY

• “Boilerplate” responses about your reasonable inquiry will be rejected.

• Simply quoting appellate language will be rejected.

Oelze v. Score Sports Venture, LLC, 401 Ill.App.3d 110, 125-126 (1st Dist., 2010)

DENIALS &

SWORN STATEMENTS

Rule 216 imposes the following 2 requirements on a party who denies a request to admit:

1. The denial must “fairly meet the substance of the requested admission.”

2. The denial must be supported by a sworn statement.

DENIALS MUST BE CLEAR &

UNEQUIVOCAL

Thus, it is unacceptable to state the following:

• “We do not admit”

• “We decline to admit”

• “Defendant demands strict proof thereof”

• “The document speaks for itself”

What is a Sworn Statement?

Section 1-109 of the Code of Civil Procedure defines sworn statement as:

“A certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.”

735 ILCS 5/1-109 (West 2002).

WHO CAN PROVIDE THE

SWORN STATEMENT?

THE PARTY!

THE PARTY!

THE PARTY!

NOT THE LAWYER!!!!

BEWARE contrary language in Skotticelli v. Club Misty, Inc., 406 Ill.App.3d 958 (1st Dist., 2010).

DISMISSED as mere “dicta” in Z Financial LLC v. ALSJ, Inc., 2012 IL App (1st) 112897, ¶ 35.

The party, NOT THE LAWYER, must provide the sworn statement.

NOT THE LAWYEREVEN IF…

• The party cannot be located. Brookbank v. Olson, 389 Ill.App.3d 683 (1st Dist., 2009).

• The party is a corporation & the responses are based on the lawyer’s investigation. Z Financial, LLC v. ALSJ, Inc., 2012 IL App (1st) 112897.

SWEARING OR SIGNINGNOT BOTH

“Adding an unsworn signature to a document that is already sworn does nothing to make that document more binding or effective.” Vision Point of Sale, Inc.

NOTE: The Supreme Court expressly overruled the portion of Moy v. Ng that held to the contrary.

OBJECTIONS• Do NOT need to be supported by sworn statement. • Affirmative duty to raise objections in good faith.

• Appropriate objections include:RelevancePrivilegeRequest calls for a legal conclusionFailure to define material termsUnclear time frame

Supreme Court Rule 216(c)

INAPPROPRIATE OBJECTIONS

• The response will cede the respondent’s entire case.

• The request calls for an opinion.

• The respondent is not medically trained or familiar with medical billing practices.

• The respondent lacks sufficient knowledge.

EFFECT AT TRIAL

• Binding on the party making them.

• Facts/documents function as judicial admissions, which cannot be controverted OR explained by any contrary evidence.

• Cannot create an issue of fact by contradicting a previously made admission.

LIMITATIONS ON USE

• Can only be used in the action in which they were elicited. Supreme Court Rule 216(e).

• Can only be used against the party who made them or one in privity. Id.

• Use at trial is not automatic. Trial judge has discretion to consider other testimony & evidence presented. Serrano v. Rotman, 406 Ill.App.3d 900, 907 (1st Dist., 2011)

ADMITTED FACTS MAY BE EXCLUDED IF…

• The evidence is no longer relevant to remaining issues;

• The evidence is superfluous & confusing;

• The other party is not entitled to the “additional dramatic force of the evidence.”

• The party waives the right to use the admitted facts by introducing evidence on the issues controlled by the admission.

Serrano v. Rotman, 406 Ill.App.3d 900, 907 (1st Dist., 2011)

SANCTIONSFalse answers or frivolous objections may subject a party to sanctions. Jordan v. Bangloria, 2011 IL App (1st) 103506.

In order to prevail on such a motion, the movant must show the following:

• Proof of the truth of the matters that were denied;• That respondent lacked good faith reason to deny;• The facts to which admissions were sought were

material to the litigation.

McGrath v. Botsford, 405 Ill.App.3d 781 (2d Dist., 2010)

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