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HANLEY v. COMO INN

April 25, 2003

EDWARD T. HANLEY, ET AL., PLAINTIFFS,
v.
COMO INN, INC., AN ILLINOIS CORPORATION, ET AL., DEFENDANT



The opinion of the court was delivered by: Nan R. Nolan, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the following motions by plaintiffs Edward T. Hanley, et al.: (1) Motion to Determine the Sufficiency of the Answers of Defendant Lawrence Marchetti to Plaintiffs' First, Second, and Third Request for Admission and for Sanctions; (2) Motion to Determine the Sufficiency of Responses of Defendants Sag Bridge Enterprises, Stefano Marchetti, and Montefiori Collections to Plaintiffs' First, Second, and Third Request for Admission and for Sanctions; (3) Motion for Order to Compel Discovery Compliance by Defendant Stefano Marchetti by Date Certain and to Extend Discovery and for Sanctions; and (4) Motion for Order to Compel Discovery Compliance by Defendant Lawrence Marchetti by Date Certain and to Extend Discovery and for Sanctions. The Court addresses each motion below.

DISCUSSION

A. Requests to Admit

Two of plaintiffs' motions challenge the sufficiency of defendants' answers to requests to admit. Under Fed.R.Civ.P. 36(a), a party may serve on any other party a written request for the admission of the truth of matters relating to statements or opinions of fact or the application of law to fact. See Heyman v. Beatrice Co., No. 89 C 7381, 1994 WL 258903, at *1 (N.D. Ill. June 9, 1994). Requests for admission are not discovery devices but, rather, "are used to establish the truth or genuineness of a matter in order to eliminate the need to prove the matter at trial or to limit the triable issues of fact." Taborn v. Unknown Officers, No. 00 C 652, 2001 WL 138908, at *1 (N.D. Ill. Feb. 16, 2001). See also C&F Packing Co. v. IBP, Inc., No. 93 C 1601, 1994 WL 36874, at *5 (N.D. In. Feb. 7, 1994) ("the purpose of Rule 36 is to expedite trial by determining which issues are in genuine dispute"). In answering a request for admissions, the answering party must admit, deny, or "set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter." Fed.R.Civ.P. 36(a); Heyman, 1994 WL 258903, at *1.

1. Lawrence Marchetti

Plaintiffs challenge the adequacy of defendant Lawrence Marchetti's ("L. Marchetti") answers to Request to Admit Nos. 5-12, 31, 55) 109, 117-119, 127, 128 and 130-34.

a. Request Nos. 5-12, 117-119, 127, 128 and 130-134

Request Nos. 5-12, 117-119, 127, 128 and 130-134 ask L. Marchetti to admit the genuineness of certain documents. In response to requests 5-12, L. Marchetti stated that he "made reasonable inquiry and the information known or readily obtainable by [him] is insufficient to enable [him] to admit or deny." With respect to requests 117-119, 127, 128 and 130-134, L. Marchetti stated that he could not admit or deny the statements because he has no knowledge whether the referenced documents are true and genuine copies of documents produced by third parties — i.e., plaintiffs' auditors and defendants Stefano Marchetti and Sag Bridges Enterprises. He claimed that "any inquiry [he] could make would require [him] to rely on knowledge of third parties which defendants need, and will, not do." See Exs. 3 and 4 to Pl. Mem.

In answering requests to admit, a 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 is insufficient to enable the party to admit or deny.
Fed.R.Civ.P. 36(a). What constitutes "reasonable inquiry" and what material is "readily obtainable" depends upon the facts of each case. See T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 42 (S.D.N.Y. 1997). Under certain circumstances, parties may be required to inquire of third parties to properly respond to requests to admit. See, e.g., In re Gulf Oil/Cities Serv. Tender Offer Litigation, Nos. 82 Civ. 5253, 87 Civ. 8982 (MBM), 1990 WL 657537, at *3-14 (S.D.N.Y. May 2, 1990) (plaintiff must consult non-parties' counsel to confirm data derived from figures in documents produced by non-party, where plaintiff and nonparty had parallel interests and had been closely cooperating in conducting discovery in two related cases); Al-Jundi v. Rockefeller, 91 F.R.D. 590, 593-94 (W.D.N.Y. 1981) (if, without extraordinary expense or effort, defendant may be able to respond to requests based upon information secured from co-defendants and their counsel, such efforts must be made).

Generally, however, a reasonable inquiry is limited to review and inquiry of those persons and documents that are within the responding party's control. T. Rowe Price Small-Cap Fund, Inc., 174 F.R.D. at 43. "Reasonable inquiry includes investigation and inquiry of any of defendant's officers, administrators, agents, employees, servants, enlisted or other personnel, who conceivably, but in realistic terms, may have information which may lead to or furnish the necessary and appropriate response." Taborn, 2001 WL 138908, at *1 (quoting T. Rowe Price Small-Cap Fund, Inc., 174 F.R.D. at 42). A party is not generally required to question unsworn third parties. Id. at *2.

Plaintiffs argue that L. Marchetti has not demonstrated that he made a reasonable inquiry into the genuineness of the documents. At first blush, this appears to be true with respect to requests 117-119, 127, 128 and 130-134 because L. Marchetti acknowledges that he did not in fact conduct any such inquiry on the grounds that it would require him to rely on the knowledge of third parties. But such reliance is permissible under Rule 36. See Lambert v. Owens, No. 99 C 50076, 2002 WL 1838163, at *1 (N.D. Ill. Aug. 9, 2002) ("[p]laintiff is not permitted to merely rely on his lack of personal knowledge when responding to requests to admit" but must "make reasonable inquiry, as to third parties if necessary, in an effort to comply with Rule 36(a)").

However, the documents at issue were produced by plaintiffs, by L. Marchetti's brother Stefano, and by Stefano's business. L. Marchetti is certainly not required to ask plaintiffs about the genuineness of the documents they produced. And the Court recognizes that L. Marchetti does not have an amicable relationship with any of his brothers, including Stefano, so it would not be reasonable for him to ask Stefano about the documents he produced. L. ...


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