Illinois Supreme Court Rule 216 (Request for Admissions) was first adopted in 1956 as Supreme Court Rule 18 and the language of the rule has remained basically the same to the present date. However, case law interpreting application of the Rule has evolved significantly since P.R.S. International, Inc. v Shred Pax Corporation1 and most recently with Vision Point of Sale v. Haas.2 Since a Rule 216 request is the only discovery tool that is self executing3 there is confusion among practicing attorneys as to how to use and respond to Rule 216 requests for admissions. A lawyer’s failure to properly respond to such a request may result in sanctions, summary judgment or default and drastically alter the course of litigation.
What is a Rule 216 Request to Admit? Historically there has been a debate as to whether requests to admit are discovery or not. Requests to admit prior to P.R.S. International have been called quasi-discovery and it has been argued that because of the unique nature of Rule 216 requests they are not discovery.4 The Supreme Court in Bright v. Dicke indicated that Rule 216 requests are not discovery when the court stated: "The purpose of admissions is not to discover facts but rather to establish some of the material facts in a case without the necessity of formal proof at trial."5
However, in 1995 the Supreme Court also amended SCR 201 to include requests for admission6 with other discovery devices such as interrogatories, requests to produce and depositions. The argument for the position that requests to admit are not discovery is that the requesting party must answer the request under oath with 28 days or the requests are deemed admitted without the necessity of a 201(k) conference or a motion to compel. In other words, a Rule 216 request is self-executing and does not require court intervention for the request to ripen into admissions against the responding party.
In the case of a request to admit the genuineness of documents, the subject documents must already be in the possession of the requesting party and be attached as exhibits to the request. An admission by the responding party to the genuineness of a document removes the necessity to lay a foundation at trial for the admission of the document.
The benefit of using requests to admit are: (1) they narrow the issues at the pre-trial stage; (2) admissions may provide information to the requesting party that will preclude the use of other discovery such as interrogatories and depositions; (3) Rule 216 admissions allow the requesting party to use the admission against the responding party; and (4) they are inexpensive to use. (sorry, court reporters) Rule 216 requests are sometimes defined as discovery devices but as a practical matter they do not "discover" anything. Rule 216 requests are a valuable tool to narrow the issues in a case, avoid wasting time laying a foundation for documents at trial, and reduce the cost of litigation.
What is a Proper Subject for Admissions? Rule 216 requests must seek the admission of facts, not conclusions or opinions. If a requesting party promulgates factual or legal conclusions they cannot be deemed to be admitted even in the absence of an answer after the 28 days response period. Prior to P.R.S. International, including "ultimate facts" or what a witness would testify to in a Rule 216 request was not appropriate..7 However, P.R.S. International changed that interpretation of Rule Rule 216 dramatically. P.R.S. International involved a breach of contract case where the defendant served the plaintiff with a request to admit. The request sought admissions that: plaintiff never obtained required permits for installation of certain machinery; never asked that the machinery be delivered at a specific place and time; and later refused delivery and requested that the machinery be sold to another party - all elements or "ultimate facts" of a cause of action for breach of contract. The appellate court, following the precedent at the time, held that "ultimate facts" were not a proper component of Rule 216 requests and ruled against the defendant who propounded the requests.8
The Supreme Court reversed the appellate court and for the first time held that "ultimate facts" were a proper subject for Rule 216 requests. This means that current law in Illinois allows a party to request admissions that go directly to the elements of a cause of action such as offer, acceptance and consideration in a breach of contract case. Such admissions may, in turn, support a motion for summary judgment in the early stages of litigation without the necessity of using other discovery tools such as interrogatories and depositions.
The most recent case impacting the use of Rule 216 requests is Vision Point of Sales, Inc. v. Haas,9 in which the defendant sent a Rule 216 request to the plaintiff but neglected to file the Rule 216 request with the Clerk. The plaintiff responded timely within the 28 day time period but prepared the answer so that the attorney’s signature appeared at the end of the answer and the plaintiffs Section 1-109 verification appeared on a separate page after the attorney’s signature. The defendant filed a motion to strike the answer on the basis that: (1) the last page of the response contained the attorney’s signature and not the plaintiff’s; (2) Circuit Court Rule 3.1 requires that responses to a request to admit must be filed with the Clerk; and (3) the plaintiff failed to show "good cause" for an extension of time to file an amended response pursuant to SCR 183.
The trial court granted the motion to strike and denied plaintiff’s request to file an amended response. Later the trial court sua sponte vacated its prior ruling, granted plaintiff time to file an amended response, and further found that good cause existed under Rule 183 for the extension of time in part due to the defendant’s recalcitrant behavior. The appellate court affirmed the trial court’s extension of time to respond but the Illinois Supreme Court reversed. The Court held that a party’s failure to comply with court orders is an entirely separate issue as to whether a party has established "good cause" under Rule 183. The test is stated in Vision Point:
"[T]he responding party cannot rely upon the ‘mere absence of inconvenience or prejudice to the opposing party’ or mistake, inadvertence, or attorney neglect as the sole basis for a good-cause determination... but must, instead, assert some independent basis for allowing the untimely response...."
The Illinois Supreme Court thus held that the plain language of Rule 183 makes good-cause a prerequisite to the granting of an extension of time. The court discussed the nature of Rule 216 requests in Vision Point:
"Black’s defines ‘discovery’ as ‘[c]ompulsory disclosure, at a party’s request, of information that relates to the litigation,’ and states that ‘[t]he primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production.’ (Black’s Law Dictionary 498 (8th ed. 2004). This definition of ‘discovery’ corresponds with our discussion in P.R.S. wherein we stated that requests to admit are useful ‘to separate the wheat from the chaff’ with the purpose of narrowing the actual contested issues in the case so that they might be clearly and succinctly presented to the trier of fact...This concept is also consistent with our long-held belief that discovery is to be utilized to ‘illuminate the actual issues in the case.’"
How to Use Requests to Admit Any party to the litigation may file and serve on any other party requests to admit and/or requests to admit the genuineness of documents. The requests may be served as soon as a responding party is required to appear pursuant to SCR 201(d)10 and unlike interrogatories, there is no limit to the number of requests that may be served on an opponent. Additionally, successive requests may be served as the litigation progresses. If the request to admit is served within 28 days of trial the responding party may still need to answer the request because SCR 218(c)11 gives the trial court discretion to require a party to answer at the pre-trial conference.
The request to admit facts should be drafted to allow an admission or denial and not contain irrelevant, immaterial or conclusory language. The primary purpose for using a request to admit is to nail down facts that are not in dispute and require the responding party to make those admissions prior to trial. Requests to admit the genuineness of documents may be served at the same time and in the same document as the request to admit facts. However, the requests to admit the genuineness of documents does not seek admission of the facts within the document, merely that the copy of the document attached to the request is genuine and therefore maybe admissible without laying the foundation at a future court hearing. Once a document has been admitted by the responding party as genuine, that admission does not remove all objections to admissibility since the responding party doesn’t admit the genuineness of facts within the document which may be irrelevant, immaterial or otherwise objectionable.
How to Respond to the Request. The responding party must be careful to admit, deny or object to each and every request. Failure to respond within 28 days, under oath, signed by the party (not just the attorney) may result in an unintended admission by the responding party. If the responding party wants to admit a request, the party simply writes the word "admit" after the numbered request. If the party wishes to deny a request, then the respondent must write the word "deny" after the appropriate request supported by an affidavit. Finally, if the party wants to object to a request the responding party must write "objection" after the numbered request with an explanation as to the basis for the objection. An objection must be either that "some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part."12 If an objection is filed, the requesting party has the obligation to set a motion for a hearing on the objected requests. If the court finds the objections are proper then the request should be stricken and listed in a court order for clarity.
As a practice pointer, it would be wise to object to any request that is ambiguous or a contains a compound question since the objection stays the 28 day deadline and allows the court to decide whether a request is proper or not, protecting the interest of the responding party.
Supreme Court Rule 216 creates an elegant and inexpensive litigation tool. Properly used, requests to admit streamline the pre-trial process. However, the responding party to a request to admit must be very careful to meticulously follow the proper procedure to avoid an unintended admission which can be used against the responding party on a summary judgment motion or at trial.
1 184 Ill.2d 224, 703 N.E.2d 71.
2 226 Ill.2d 334, ___ N.E.2d __ (2007).
3 Gilbert C. Schumm, Illinois Supreme Court Rule 216: How to Use Requests to Admit, 73 Ill. Bar J.338 (Feb. 1985)
4 Rediscovering the Truth: Requests for Admissions Are Not Discovery, 87 Ill. Bar J. 214 (April 1999)
5 166 Ill 2d 204, 208 (1995).
6 134 Ill.2d R 201.
7 Zindrick v. Drake, 75 Ill.App.3d 702, 393 N.E.2d 1277 (2d Dist. 1979).
8 P.R.S. International, Inc. v Shred Pax Corporation, 292 Ill.App.3d 956, 686 N.E.2d 1214 (3rd Dist. 1997).
9 226 Ill.2d 334, ___ N.E.2d __(2007)
10 134 Ill.2d R 201(d).
11 134 Ill.2d R 218 (c).
12 134 Ill.2d R 216(c)(2).
Gilbert C. Schumm is a sole practitioner in Elk Grove Village, Illinois, concentrating in civil litigation, Social Security Disability and juvenile law. He has been a practicing attorney since 1977 and has a law degree from the John Marshall Law School and a B.S. degree from the University of Illinois at Champaign. Mr. Schumm is a former member of the Judge’s Night cast. Mr. Schumm would like to acknowledge the technical assistance of Peggy J. Schumm.