Judge Lynn M. Egan Judge Franklin U. Valderrama

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14 Νοε 2013 (πριν από 3 χρόνια και 9 μήνες)

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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
.
2
d

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
.
3
d

344

(
5
th

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
.
3
d

1075

(
3
d

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
.
3
d

196

(
1
st

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

1
st

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



3
rd

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
.
3
d

1042
,

1055

(
1
st

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 (5
th

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
.
3
d

110
,

125
-
126

(
1
st

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 (1
st

Dist., 2010).


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


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


The

party

cannot

be

located
.

Brookbank

v
.

Olson
,

389

Ill
.
App
.
3
d

683

(
1
st

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

(
1
st
)

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
.
3
d

900
,

907

(
1
st

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
.
3
d

900
,

907

(
1
st

Dist
.
,

2011
)


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

www.cookcountycourt.org


All

written

materials

&

PowerPoint

presentations

from

prior

sessions

available
.