The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Neither Admitting, Nor Denying:  Proper Responses to Requests to Admit in Domestic Relations Proceedings
By Todd Scalzo & Sean McCumber

Illinois Supreme Court Rule 216 provides litigators with a useful tool for establishing some of the material facts in a case without the necessity of formal proof at trial.  They are designed to “separate the wheat from the chaff” and to circumscribe contested factual issues in the case in order to clearly and succinctly present the disputed issues to the trier of fact.[1] Rule 216 allows a party to serve on any other party a written request for an admission of truth of any fact or the genuineness of any relevant document described in the request. The party responding must serve either (1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.[2]

In domestic relations matters, requests to admit facts can be used to streamline fact-based issues for the court, including issues such as eligibility for maintenance, termination of maintenance, deviation from guideline child support, dissipation of assets, and allocation of college expenses.   Facts sought to be admitted can include whether a party has sought employment, whether a party is cohabiting with a third party, the types of expenditures a party has made, and standards of living of the parties and/or the children.  With respect to documents, requests to admit the genuineness of documents can expedite the litigation process by eliminating the need to call custodians of records to verify documents, such as bank statements, pay records, and retirement account statements.

Though initially, requests to admit facts were utilized to allow the requesting party to address narrow issues of fact such as dates, times, locations and measurements, the Illinois Supreme Court expanded their use to allow a party to make a request for admissions with respect to any contested facts needed to establish the truth of one’s case or defense.[3]  This can cause confusion because the purpose of a request to admit is to narrow the issues to be decided at trial, not to shift the burden of proof on to a defendant,[4] nor produce evidence prior to trial.[5]  So, in a domestic relations matter, requests to admit can and should be used to assist the parties in focusing the litigation to a point, not, for example in a dissipation claim, to shift the burden of proof to the party defending against the dissipation claim.

When receiving requests to admit, the responding party must respond in writing with a sworn response, or with objections.[6]  The responding party may admit the request.   The responding party may deny the request.[7]  However, what if the responding party can neither admit, nor deny the request, either as to fact or genuineness of a document?   The responding party responds that it can neither admit, nor deny, but that does not end the response. The responding party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party’s reasonable control.[8]  Rule 216 itself does not require a party to state that it has made reasonable inquiry or effort to secure answers from documents or persons within its control; or that failing to do so is a violation of the Rule; or that failing to do so results in the admission of facts.   This is a departure from the Federal Rules of Civil Procedure.[9]  Accordingly, a sworn response that neither admits, nor denies the request that states why the request cannot be admitted, nor denied, is sufficient.[10]

The requesting party may find this response to be inadequate and may move the court to deem the requested facts admitted or the requested documents genuine.             

Turning back to a domestic relations situation, suppose the requesting party seeks an admission from the defendant that the plaintiff’s employment records are genuine.  The defendant is right to respond that it can neither admit nor deny.  The defendant lacks the knowledge as to the genuineness of the third-party (employer) documents.  This is especially true if employability of the plaintiff is at issue in the litigation.   The plaintiff will liken the defendant’s response to a delay tactic, and will seek to have the records deemed genuine because the defendant did not explain why his or her resources are lacking to the extent that he or she cannot answer the requests.[11]

In Oelze, the First District found that defendant tennis club’s refusal to admit or deny the reasonableness and necessity of plaintiff tennis player’s medical bills violated Rule 216, because such matters were well within the club’s knowledge since it had access to “its insurance company and the insurer’s databases of claims and necessary treatments and expenses.”[12]  But in the example, the defendant does not have access to the plaintiff’s employer’s records and has no knowledge of the employment situation, apart from what the plaintiff may have told the defendant.   The defendant took no part in the creation of the records.   The defendant, by law, is not entitled to the records in the ordinary course of the employer’s business. [13]

The requesting party, in moving the court to deem facts admitted or documents as genuine, will argue that the “neither admit, nor deny” response is insufficient.   The responding party, of course, will first argue that the response is sufficient and proper.   However, as a matter of practice, the responding party should argue in the alternative that the proper remedy to an insufficient response to permit the responding party to amend its response, rather than having the facts deemed admitted or the documents deemed genuine.   Almost all of the cases where Rule 216 facts were deemed admitted involved responses that violated Rule 216’s strict time and verification requirements.[14]  A “neither admit, nor deny” response timely filed and verified in accordance with Rule 216 does not fit case law on deeming facts admitted.  Illinois courts have regularly allowed amended 216 responses where the original response was timely and sworn, but its sufficiency was disputed.[15] 

The propriety of a request to admit, and whether a response should be deemed an admission are questions of law which are reviewed by an appellate court with a de novo standard.[16] Though Rule 216 saves litigation resources and promotes judicial economy by eliminating litigation over certain factual issues, the requesting party should exercise care in crafting responses that truly can and should be answered by the responding party.   The responding party should not fear the “neither admit, nor deny” response, but also must prepare to defend such a response in order to ensure that litigation occurs on the merits.

[1] PRS Internat’l, Inc. v. Shred Pax Corp., 184 Ill.2d 224, 237, 703 N.E.2d 71, 77 (1998).
[2] Ill. Sup. Ct. R. 216(c) (2011).  Rule 216 has recently been amended to limit a party requesting admission to 30 requests.
[3] PRS, 184 Ill.2d at 233.
[4] Oelze v. Score Sports Venture, LLC, 401 Ill.App.3d 110, 125, 927 N.E.2d 137, 149 (1st Dist. 2010)
[5] Golf Trust of America, L.P. v. Soat, 355 Ill. App. 3d 333, 336, 822 N.E.2d 562, 566 (2nd Dist. 2005).
[6] Ill. Sup. Ct. R. 216(c) (2011).
[7] Pursuant to Illinois Supreme Court Rule 219(b), if the requesting party proves the fact at trial or the genuineness of document at trial, after receiving a sworn denial, the requesting party, on motion, shall receive the fees and costs incurred in proving the fact or document.  Ill. Sup. Ct. R. 219(b) (2011).
[8] Szczeblewski v. Gossett, 342 Ill.App.3d 344, 349, 795 N.E.2d 368, 372 (5th Dist. 2003).
[9] An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.  Fed.R.Civ.P. 36 (2011).
[10] See PRS, 184 Ill.2d at 238; Brookbank v. Olson, 389 Ill.App.3d 683, 907 N.E.2d 426, 430 (1st Dist. 2009)
[11] Oelze, 401 Ill.App.3d at 125.  See also Liepelt v. Norfolk & W. Ry. Co., 62 Ill. App. 3d 653, 378 N.E.2d 1232 (1st Dist. 1978) (holding that defendant’s failure to either admit or deny the plaintiff’s request was an admission as it failed to set forth the reasons that this information was not in its possession and could not be obtained).
[12] Id. at 150.
[13] One might argue that bank records and retirement statements would follow the example regarding employment records.   However, joint records or records that the parties would readily share with one another (retirement account statements) would likely fall under the responding party’s control or realm of knowledge.
[14] See Tires ‘N Tracks, Inc. v. Fiordirosa Construction Co., Inc., 331 Ill.App.3d 87, 771 N.E.2d 612, 618 (2nd Dist. 2002)(affirming trial court’s order deeming facts admitted after untimely, unsworn response); PRS, 184 Ill.2d at 243 (affirming trial court’s order deeming “ultimate facts” admitted after party failed to respond at all); Fritzsche v. Union Pacific Railroad Co., 303 Ill.App.3d 276, 707 N.E.2d 721, 732 (5th Dist. 1999)(affirming trial court’s order deeming facts admitted after unsworn response); Brookbank, 389 Ill.App.3d at 690 (deeming facts admitted after attorney signed on behalf of party); Coleman v. Akpakpan, 402 Ill.App.3d 822, 932 N.E.2d 184 (1st Dist. 2010)(affirming trial court’s order deeming facts admitted after unsworn response).
[15] See Golf Trust of America, L.P., 355 Ill. App. 3d at 336 ( 2nd Dist. 2005) (affirming trial court’s order allowing amended 216 response); Szczeblewski, 795 N.E.2d at 374 (Ill. App. 5th Dist. 2003)(remanding with instructions to allow amended 216 response); Troyan v. Reyes, 367 Ill.App.3d 729, 855 N.E.2d 967, 977 (3rd Dist. 2006)(remanding with instructions to allow amended 216 response).
[16] PRS, 184 Ill.2d at 233-34.

Todd Scalzo is an attorney at Scalzo Law Offices in Wheaton, Illinois, practicing in family law and civil litigation.  He received his B.A. from the University of Illinois in 2000 and his J.D. from The John Marshall Law School in 2004.  He currently serves on the DCBA Judiciary Committee and as Vice-Chair of the DCBA Local Government Committee.  He was elected to the Wheaton City Council in 2009. 

Sean McCumber is a partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois.    He received his B.A. from Illinois State University in 1995 and his J.D. from The University of Illinois College of Law in 1998.  He concentrates his practice in family law, adoptions, and juvenile law.
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