Page 24 - John Hundley 2010

negotiations. With leave of court, plaintiff denied the requests, but long after the specified period for
objections (Ill. S. Ct. R. 216(c)) had passed. After defendant prevailed at trial, he moved for attorney
fees and costs for having proven matters improperly denied, but the court denied the request
because it was not “clear as a bell *** that there was no reason for” the denials.

The Appellate Court ruled this was an incorrect approach. It said that to prevail on a motion for
fees and costs due to improper failure to admit, the moving
party must show only “(1) proof of the truth of the matters
asserted that were denied by the nonmovant; (2) that the
nonmovant lacked good reason to deny the facts asserted;
and (3) the materiality to the litigation of the facts as to
which admissions were sought.” By imposing additional
requirements, the trial court erred, the Second District
said.

Moreover, the court said that a respondent “has an
affirmative obligation under Rule 216 to admit or deny the
requested admissions in good faith, or, if a requested admission is improper due to privilege,
improper form, or any other reason, to file an objection within the 28 days given for responding.
(citation omitted) Under the plain language of the rules, if a moving party can show that the
nonmoving party has not complied with these affirmative obligations, the movant may obtain
reasonable expenses under Rule 219(b), regardless of whether the nonmoving party had the
‘intent to obstruct’ the progress of the litigation.”

Several observations may be offered regarding this decision.

First, McGrath openly differs with decisions from the First District on the
“conceding the case away” issue, raising questions as to whether it will be
followed on that point by other courts.

Second, McGrath is unclear on trial courts’ authority to allow belated
objections. While its “forfeiture” language would seem to say that belated
objections should not be allowed, the appellate panel noted that respondent
there had not sought to make any such objections, but simply belatedly
answered “Denied.”

However, McGrath is part of a slow but perceptible trend of putting teeth
into Rules 216 and 219 regarding requests to admit. While it may yet be too
soon to conclude that there is a legal presumption that these rules “have the force of law, creating the
presumption that [they] will be obeyed and enforced as written”, that day may be coming.

John\Sharp Thinking\#39.doc.

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