Application of discovery rules to requests to admit

Requests to Admit1 have been a hot topic in the law in the past few years, and the case law is still evolving. One issue that has recently seen increased litigation is whether Requests to Admit are discovery devices subject to the requirements of discovery rules and orders of court, such as the requirement to meet and confer regarding discovery disputes and the requirement that all discovery be completed before the discovery closure date. If these discovery rules apply to Requests to Admit, then the parties must meet the requirements or risk the possibility of having an adverse order entered against them.

Illinois Supreme Court Rule 216 provides that “a party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request,” or the genuineness of a document.2 Similarly, the federal rules provide that “a party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any” relevant fact, opinion or genuineness of a document.3 When courts have addressed whether Requests to Admit are subject to the discovery rules, there are sometimes differing conclusions.

In Illinois, the Supreme Court has unequivocally held that Requests to Admit are part of the discovery process.4 Based in part upon the Supreme Court’s holding, the Appellate Court has ruled that Requests to Admit are subject to an order staying all discovery pending the determination of a motion to dismiss.5 In another case, the Appellate Court ruled that Requests to Admit are “a proper discovery device” in determining that sanctions were not warranted under Rule 218 and 219(d) for issuing Requests to Admit in that case.6

Thus, in Illinois courts Requests to Admit are subject to at least some discovery orders and rules. Presumably, Requests to Admit are subject to the “meet and confer” requirement for discovery disputes under Supreme Court Rule 201(k). This logically flows from the stated purpose of Rule 201(k), which is to encourage cooperation among opposing counsel to resolve issues before court intervention.7 There is no reason that counsel should not attempt to resolve disputes involving Requests to Admit in the same manner as disputes involving conventional discovery devices.

It is less clear whether Requests to Admit are subjected to the discovery closure date in a case because of the inherent differences between Requests to Admit and other discovery devices. The purpose of Requests to Admit is to narrow the issues that will be presented to the trier of fact.8 A party may not know until the end of discovery what issues can be narrowed. Waiting until after discovery closes gives both the requesting party and the responding party the advantage of knowing all the facts before attempting to narrow the issues. But if Requests to Admit are subjected to the general discovery closure order, the parties cannot wait until all the facts of the case are fleshed out before drafting and answering Requests to Admit. Current Illinois case law does not provide a resolution to this issue.

The federal courts continue to wrestle with the issue of whether a Request for Admission is a discovery device. Some courts have held that Requests for Admission are discovery devices subject to discovery rules and orders.9 Other courts have held that Requests are not discovery devices.10 The comments to Rule 36 make clear that the Rule is subject to the limitations of Rule 26(d), which bars formal discovery until after the parties have a “discovery conference,” but the Rule and the commentators are silent as to other discovery limitations.11

The Northern District of Illinois recently addressed the implicit differences between Requests for Admission and other discovery devices.12 The District Court found that Requests for Admission are not truly discovery devices, citing with approval the authors of Moore’s Federal Practice who argue that Requests for Admission “are distinguishable from other discovery devices,” mainly because they are meant to streamline issues for trial.13 The Court went on to note that there are two different “flavors” of Requests for Admission: (1) those sent as a tactic to establish a fact before it is developed in conventional discovery; and (2) those sent to obtain admission of facts already learned through the discovery process or to admit the genuineness of documents.14

For the first type of Requests, it may be proper to require them to be propounded before the close of discovery to allow the responding party to flesh out any issues raised in the Requests during the remainder of discovery and to avoid attempts to ambush the opposing party.15 In the second type, it seems proper to allow such requests to be served after the close of discovery, but before the eve of trial, in order to serve the goal of narrowing the issues for trial.16 The District Court did not espouse a blanket analysis for this issue; rather, as the specific circumstances facing the Court involved the second type of Requests, the Requests were allowed to be propounded after the close of discovery.17 The District Court then specifically stated that it expected the parties to meet and confer regarding any disputes arising from the Requests as prescribed by Northern District Local Rule 37.2.18

After reviewing the case law in both Illinois and federal courts, it appears that parties are likely to be required to follow some discovery rules for Requests to Admit, such as the “meet and confer” requirement, but not all of them, such as the discovery closure date. In order to alleviate any potential confusion, counsel could ask the court to impose a separate deadline to issue Requests to Admit after the close of regular discovery. For example, the parties could ask the court to close discovery on July 1, set August 1 as the deadline to propound Requests to Admit, and schedule the trial to commence after October 1. This would give the parties the freedom to serve Requests during or after discovery, depending on strategy, while not interfering with the court’s trial schedule.19

However, a wrinkle develops in Illinois if Requests to Admit are subject to the requirement that all discovery must be completed no later than 60 days before trial.20 Depending on the trial date, there may not be time to set a deadline to issue Requests to Admit without closing fact discovery at least 90 days before trial. That is not always an option, but in any case the parties can agree upon a deadline that would allow the Requests to be completed before trial.21 As of now, there is no case law to give counsel guidance on these issues.

As in most cases, the final determination on the issues presented in this article is up to the sound discretion of the trial judge. Until the appellate courts take up these issues again, wise counsel should remain vigilant and timely bring issues involving Requests to Admit to the trial court’s attention. ■

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Kevin Lovellette is an Assistant Illinois Attorney General and currently supervises the Prisoner Litigation Unit in the General Law Bureau. All opinions in this article are his and are not necessarily the opinions of the Office of the Attorney General. All mistakes are exclusively his.

1. Illinois law calls these devices “Requests to Admit.” Ill. Sup. Ct. Rule 216. Federal law calls them “Requests for Admission.” F.R.C.P. 36. This article will refer to “Requests to Admit” when discussing the devices generally, but will call them by their particular name when referring to the specific Illinois or federal rule.

2. Ill. Sup. Ct. Rule 216.

3. F.R.C.P. 36(a).

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

5. DOD Technologies v. Mesirow Ins. Services, Inc., 381 Ill. App. 3d 1042, 1055 (1st Dist. 2008)(“In light of this clear statement by the supreme court, the requests to admit clearly fall within the court’s order pertaining to stays of ‘discovery’”).

6. Brookbank v. Olson, 389 Ill. App. 3d 683, 688 (1st Dist. 2009).

7. Williams v. A.E. Staley Mfg. Co., 83 Ill. 2d 559, 564 (1981).

8. Bright v. Dicke, 260 Ill. App. 3d 768, 772 (1st Dist. 1994).

9. See Federal Maritime Com’n v. South Carolina State Ports Authority, 535 U.S. 743, 758 (2002)(suggesting without holding that Requests for Admission are used to discover facts); Laborer’s Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 606, n.2 (7th Cir. 2002)(reserving the issue but pointing out that the Rules seem to contemplate that Requests for Admission are a discovery device); U.S. ex rel. Fry v. Guidant Corp., slip copy, 2010 WL 2838539 (M.D. Tenn. 2010)(recognizing split in authority and following line of cases holding Requests for Admission are discovery devices).

10. See T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38, 42 (S.D.N.Y. 1997)(“Rule 36 is not a discovery device.”); Lakehead Pipe Line Co. v. American Home Assur. Co., 177 F.R.D. 454, 458 (D. Minn. 1997)(“Requests for Admission are not a discovery device”); Morris v. Electrical Systems, 1990 WL 258387, *4 (N.D. Ind. 1990)(finding that Requests for Admission were “technically” not governed by the court’s discovery order).

11. F.R.C.P. 36, comments to 1993 Amendments (amendment will prevent “a party from seeking formal discovery until after the meeting of the parties required by Rule 26(f)”).

12. Kelly v. McGraw-Hill Companies, Inc., F.R.D ___ , 2012 WL 386324 (N.D. Ill. 2012)(Shadur J.).

13. Id., at *2.

14. Id.

15. Id.

16. Id., at *3.

17. Id., at *4.

18. Id., at *4, n.2.

19. See Ill. Sup. Ct. Rule 218; F.R.C.P. 26(a).

20. Ill. Sup. Ct. Rule 218(c).

21. Id.