Request to Admit carry strict deadlines and a parties’ failure to properly respond to the requests can be fatal to their case. At times, it can be a call-your-malpractice-carrier event. In September, 2006, the Illinois Supreme Court decided Vision Point of Sale v. Haas and overturned case law prohibiting the trial court from considering evidence of “mistake, inadvertence or attorney neglect” in making its determination of whether “good cause” exists to grant an extension of time to file late responses to requests to admit.[ 223 Ill.2d 334, 875 N.E.2d 1065 (2007).] This article will examine the decision and what it means for litigators issuing and responding to requests to admit facts.
Requests to Admit.
Rule 216 Requests to Admit are discovery tools whose essential purpose is to “establish some of the material facts in a case without the necessity of formal proof at trial.”[ P.R.S. International, Inc., v. Shred Pax Corp., 184 Ill.2d 224, 237, 701 N.E. 2d 71 (1998).] They serve as “a device by which to separate the wheat from the chaff” and are intended to “circumscribe contested factual issues in the case so that issues which are disputed might be clearly and succinctly presented to the trier of facts.”[ Id. citing 23 Am.Jur.2d §314 (1983).] For example, litigants will often use Requests to Admit to establish the genuineness of documents or to set up a motion for summary judgment, wherein a litigant must show a fact is not dispute through some form of admissible evidence, such as an admission. Unlike interrogatories and requests to produce, there are no limits on the number of requests to admit a party may issue.
A party receiving Requests to Admit must properly respond within twenty eight days, or the facts contained therein are deemed admitted.[ Supreme Court Rule 216(c).] Rule 183 allows some flexibility with the twenty-eight day rule by allowing a party to move before or after the passing of the twenty-eight days to move for an extension of time in which to file a proper response. Rule 183 vests the trial court with discretion but prohibits the trial court from exercising that discretion unless the party requesting the extension shows “good cause”.
The “Good Cause” Standard – Bright v. Dicke
In 1995, the Supreme Court decided Bright v. Dicke and evaluated what “good cause” means in the context of Rule 183.[ 166 Ill.2d 204, 652 N.E.2d 275 (1995).] The Bright court placed the burden on the party moving for a Rule 183 extension to submit to clear, objective reasons why it was unable to meet the original deadline and why an extension of time should be granted.[ Id. at 209.] The Bright court refused to allow movants to rely upon a lack of prejudice to support a Rule 183 motion. The movant must assert some independent ground for why its untimely response should be allowed or its request for an extension will be denied.[ Id.] The trial court is given discretion to determine whether a movant has demonstrated “good cause” and its decision will be reviewed on an abuse of discretion standard.[ Schwlab v. Wood, 288 Ill. App. 3d 498; 680 N.E.2d 773 (3rd Dist. 1997).]
Rule 216 becomes a tactical bullet.
Following Bright, the appellate courts developed a line of cases that further narrowed what constituted a valid “independent ground” for allowing an untimely response. These courts held that it is an abuse of discretion for a trial court to consider evidence of mistake, inadvertence or attorney neglect in making its good cause determination. [ See e.g., Hammond v. SBC Comm., Inc., 365 Ill.App.3d 879, 893, 850 N.E.2d 265 (1st Dist. 2006); Robbins v. All-State Ins. Co., 362 Ill.App.3d 540, 544, 841 N.E.2d (2nd Dist. 2006); Larsen v. O’Donnell, 361 Ill.App.3d 388, 396, 836 N.E.2d 863 (4th Dist. 2005); Glasco v. Marony, 347 Ill.App.3d 1069, 1073 (5th Dist. 2004).] In the Rule 216 setting, these cases created a harsh reality for lawyers and clients. Unless a party could present evidence separate and apart from mistake, inadvertence, or neglect, an extension would not be granted, the underlying Requests to Admit would be deemed admitted, and the party would be deprived of the opportunity to dispute any of the supposed facts contained in the requests to admit. In most instances, late or improper responses result in judgment being entered against the delinquent party. As pointed out by one commentator, no appellate court since Bright has found “good cause” for allowing an extension of time to file a response to a request to admit.[ J. Hynes, Admissions of Fact in Discovery: Avoiding the Rule 216 trap, 93 Ill. B.J. 402, 406 (2005).]
Because of its inflexibility, Rule 216 became a bullet in which litigators could use to try to shoot down the opposing parties’ case, without regard to the merits. For example, a party could issue requests to admit that were identical to allegations found in their compliant. If the responding party did not precisely and timely comply with all the requirements of Rule 216, then the requests would be deemed admitted (regardless of their veracity) leaving the responding party’s attorney with some explaining to do to his client, his malpractice carrier, and possibly to the ARDC.[ A failure to respond to requests to admit facts has been used by the ARDC in complaints against lawyers. See e.g., In re Bates, 2007 Ill. Atty. Reg. Disc. LEXIS, 201 (2007); ] The use of Rule 216 requests in the matter became so pervasive that the Chicago Lawyer posited in its December 2006 issue the rhetorical question of “whether the point of Rule 216 is to obtain information or to set a trap in hope of winning by default.”[ S. Wood, The Inconvenient Truthiness About Rule 216, Chi. Lawyer, Dec. 2006, 26, 62.]
Vision Point provides some armor to the Rule 216 Bullet.
Because of its inflexibility, Rule 216 became a bullet in which litigators could use to try to shoot down the opposing parties’ case, without regard to the merits. For example, a party could issue requests to admit that were identical to allegations found in their compliant. If the responding party did not precisely and timely comply with all the requirements of Rule 216, then the requests would be deemed admitted (regardless of their veracity) leaving the responding party’s attorney with some explaining to do to his client, his malpractice carrier, and possibly to the ARDC.[ A failure to respond to requests to admit facts has been used by the ARDC in complaints against lawyers. See e.g., In re Bates, 2007 Ill. Atty. Reg. Disc. LEXIS, 201 (2007); ] The use of Rule 216 requests in the matter became so pervasive that the Chicago Lawyer posited in its December 2006 issue the rhetorical question of “whether the point of Rule 216 is to obtain information or to set a trap in hope of winning by default.”[ S. Wood, The Inconvenient Truthiness About Rule 216, Chi. Lawyer, Dec. 2006, 26, 62.]
The certified question before the Supreme Court was framed as follows: “In determining whether good cause exists under Supreme Court Rule 183 for the grant of an extension of time to remedy an unintentional noncompliance with a procedural requirement, may the court take into consideration facts and circumstances of record that go beyond the reason for non-compliance?”[ Id. at 335-336.]
The court began its analysis by discussing the Bright decision and specifically noted the decision stands for the proposition that a trial court may extend time to allow a party to comply with the requirements of Rule 216 only if the delinquent party establishes good cause for its noncompliance.[ Id. at 342-343.] It rejected the contention that a request to admit is not part of the discovery process. Instead, the court ruled that is a “discovery method” and one in which the trial court has the sound discretion to control.[ Id.]
The court then addressed the post-Bright appellate case law directly. The court ruled the appellate court improperly limited the discretion of the trial court to consider objective evidence that may be relevant to the court’s good-cause determination.[ Id. at 351-352.] It noted that even the best of lawyers make technical or inadvertent mistakes, and that such conduct should not serve as an automatic basis for denying a good-cause motion for an extension of time. The court mentioned specific criticisms of the rule from legal communications, noted that several legal groups submitted proposals to amend Rule 216 to soften the adverse effects on litigation which have followed in the wake of the post-Bright appellate case law. At the public hearings of the Supreme Court’s Rule Committee, the committee heard repeated testimony labeling the case law “draconian”.[ Id.]
The court proceeded to overrule those cases and stated that it has never held that “mistake, inadvertence or attorney neglect” is automatically excluded from the trial court’s consideration in determining whether good cause exists to grant an extension of time pursuant to Rule 183.[ Id.] Instead, the court noted the “broad overall policy goal of resolving cases on the merits rather than on technicalities”.[ Id. citing Shimanovsky v. Gen. Motors Corp., 181 Ill.2d 112, 123 (1998).] It refused to provide any additional specific definition of “good cause” but rather noted “good cause” is a fact-dependant determination that rests within the sound discretion of the trial court. The Vision Point court stated, however, that the trial court does not have carte-blanche authority to consider the “totality of the circumstances”. [ Id. at 353.] Open-ended inquiries are not permitted after Vision Point. Instead, the trial court is limited in considering only the causes of the party’s original non-compliance in evaluating whether or not a Rule 183 motion should be granted.
Dodging the Bullet?
Several important lessons can be learned from the Vision Point decision. First, the decision underscores that Requests to Admit can be used in a variety of ways. On one hand, Requests to Admit can be used as a cost-effective means of preparing a case for trial and for streamlining other avenues of discovery. Requests to Admit issued early in a case can be used to narrow future discovery requests and narrow the scope of a witness’s trial testimony. On the other hand, Requests to Admit can be used as a weapon. Unlike the other methods of discovery, Requests to Admit carry a predetermined penalty, i.e., a factual admission, whenever a responding party does not strictly comply with the procedural requirements of Rule 216. While Vision Point provided the trial court with more latitude on when it can issue extensions of time to comply with the procedural requirements of Rule 216, the severe consequences for failing to comply with Rule 216 remain. Therefore, it is important for every law office to carefully review requests to admit, take steps to ensure the client has been informed of the seriousness of requests to admit, provide the client with adequate time to review and sign the responses.
Second, the scope of the Vision Point decision should also be appreciated. The certified question before the court was a narrow one and made reference only to “unintentional non-compliance with a procedural requirement.” While the certified question dealt only with the issue of what constituted good cause under Rule 183, the Supreme Court took a broader view and spent a great deal of time discussing the function of Requests to Admit, noted that Requests to Admit became a “trap for the unwary” and how the appellate courts created a “draconian” rule that frustrated the very purposes of discovery and the public policy objectives contained therein.
Given this broad departure from the issue presented, it is clear that the Supreme Court wished to curtail the practice of using Requests to Admit as a tactical weapon and intended to discourage the use of the Requests to Admit as a means of resolving disputes on procedural traps rather than on the merits. However, the Supreme Court declined to make broad rules regarding requests to admit. Instead, it permitted the trial courts to use their discretion in determining whether an extension of time to a request to admit should be granted or denied. Therefore, it still remains imperative for lawyers to take precautions to ensure requests to admit are timely and properly answered.
James L. Ryan is an associate attorney at the Wheaton law firm of Roberts & Caruso. He concentrates his practice in the areas of civil and commercial litigation, business law and probate. He received his undergraduate degree from the University of Notre Dame in political science and economics and his law degree from Loyola University of Chicago School of Law. While in law school, Mr. Ryan completed Loyola’s Trial Advocacy Program earning a certificate in trial advocacy, served as a lead articles editor for the Loyola University Chicago Law Journal and advanced to the national quarterfinals of the Wagner Labor and Employment Law Moot Court Competition.
1 223 Ill.2d 334, 875 N.E.2d 1065 (2007).
2 P.R.S. International, Inc., v. Shred Pax Corp., 184 Ill.2d 224, 237, 701 N.E. 2d 71 (1998).
3 Id. citing 23 Am.Jur.2d §314 (1983).
4 Supreme Court Rule 216(c).
5 166 Ill.2d 204, 652 N.E.2d 275 (1995).
6 Id. at 209.
7 Id.
8 Schwlab v. Wood, 288 Ill. App. 3d 498; 680 N.E.2d 773 (3rd Dist. 1997).
9 See e.g., Hammond v. SBC Comm., Inc., 365 Ill.App.3d 879, 893, 850 N.E.2d 265 (1st Dist. 2006); Robbins v. All-State Ins. Co., 362 Ill.App.3d 540, 544, 841 N.E.2d (2nd Dist. 2006); Larsen v. O’Donnell, 361 Ill.App.3d 388, 396, 836 N.E.2d 863 (4th Dist. 2005); Glasco v. Marony, 347 Ill.App.3d 1069, 1073 (5th Dist. 2004).
10 J. Hynes, Admissions of Fact in Discovery: Avoiding the Rule 216 trap, 93 Ill. B.J. 402, 406 (2005).
11 A failure to respond to requests to admit facts has been used b. the ARDC in complaints against lawyers. See e.g., In re Bates, 2007 Ill. Atty. Reg. Disc. LEXIS, 201 (2007);
12 S. Wood, The Inconvenient Truthiness About Rule 216, Chi. Lawyer, Dec. 2006, 26, 62.
13 226 Ill.2d at 351, 875 N.E.2d at 1077.
14 Id. at 338-340.
15 Id. at 335-336.
16 Id. at 342-343.
17 Id.
18 Id. at 351-352.
19 Id.
20 Id.
21 Id. citing Shimanovsky v. Gen. Motors Corp., 181 Ill.2d 112, 123 (1998).
22 Id. at 353.