Transcript requests to admit: pitfalls & practicalites

Judge Lynn M. Egan
Judge Franklin U. Valderrama
July 19, 2013
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)
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.
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)
• 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).
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
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.
• A party to submit a request to admit to himself
OR
• To solicit an admission from a similarly aligned party.
• To limit issues at trial by withdrawing admitted facts
from contention;
• Eliminate the need for formal proofs;
• Allow for a more streamlined & efficient case.
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)
• The requested fact is an “ultimate” fact
• The request relates to an opinion
• The factual question gives rise to a legal conclusion
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).
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)
• 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
• 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
• 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…
• 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
• 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.”
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.
• 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))
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)
• 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).
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.
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).
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)
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.
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”
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).
THE PARTY!
THE PARTY!
THE PARTY!
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.
• 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.
“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.
• Do NOT need to be supported by sworn statement.
• Affirmative duty to raise objections in good faith.
• Appropriate objections include:
Relevance
Privilege
Request calls for a legal conclusion
Failure to define material terms
Unclear time frame
Supreme Court Rule 216(c)
• 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.
• 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.
• 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)
• 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)
False 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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