Defense Attorneys Lose a Powerful Weapon

By Jennifer L. Morris

Illinois Supreme Court Rule 216 has provided litigators, especially defense attorneys, with an effective tool for establishing the elements of a case through “requests for admission” and “requests to admit.”  Rule 216 allows a party to serve on another party a written request for an admission of truth of any specified relevant fact set out in the request, and/or of the genuineness of documents.  If the party served with a request to admit fails to respond within twenty-eight days, the facts set out in the request are deemed factual admissions that cannot be contradicted at a later date.  As such, defense attorneys have long utilized requests to admit as the basis for successful motions for summary judgment.

This strict compliance with discovery rules has long been a critical aspect of successful litigation in Illinois, and an untimely response to a request to admit often resulted in dire consequences to the non-responsive party’s case.  However, after years of strict application of the rules governing requests to admit, the Illinois Supreme Court has taken steps to scale back the often harsh results of Illinois Supreme Court Rule 216.

In 2007, the Illinois Supreme Court decided Vision Point of Sale, Inc. v. Haas.  In that case, the Supreme Court clarified that a party may be allowed to respond to a request for admission after expiration of the twenty-eight day deadline if the delinquent party can establish good cause for its noncompliance.  Although the failure to properly comply with the requirements of Rule 216 may still be fatal to a party’s claim, the Supreme Court effectively relaxed the standards of what it means to show “good cause,” thus providing greater protection to parties from the rigidity of Rule 216.

In 2010, in a further effort to soften the blow, the Illinois Supreme Court amended Rule 216.  Effective January 1, 2011, parties must follow special requirements in serving another party with a request to admit.  First, the request itself must include a conspicuous warning in twelve-point boldface font that provides as follows:

WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this paper, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine.

Additionally, the number of requests is now limited to thirty, and the document must be served separately from any other documents or discovery.  In the comments to Rule 213, the Supreme Court noted that this amendment was consistent with Vision Point of Sale v. Haas, and was designed to address certain problems with Rule 216 which often worked to the disadvantage of certain litigants, particularly pro se litigants, who may not understand that failure to respond within the time allowed results in the requests being admitted. 

Despite these changes, Rule 216 will continue to provide litigators with an effective tool to determine key elements of a case prior to trial.  However, while the recent changes to Rule 216 may prove beneficial to those who unintentionally fail to comply, they will also hinder the ability of attorneys to use the requests as a means to summary judgment.

Originally published in the Spring 2011 edition of Quinn Quarterly.