Kelly v. McGraw-Hill Cos., No. 10 C 4229, Slip Op. (N.D. Ill. Feb. 7, 2012) (Shadur, J.).

Judge Shadur granted plaintiff’s motion to file Fed. R. Civ. P. 36 requests for admission (“RFA”), even though the responses would be due after the close of fact discovery.  This is not an IP case, but the Court’s holding was valuable to all N.D. Illinois litigants.  First, the Court explained that while RFAs were established pursuant to Rule 36 which was within the discovery section of the Federal Rules, they could also have been put in the next section related to trials.  While RFAs could be used for discovery purposes, these RFAs were more akin to trial than discovery.  They largely sought to establish the admissibility of documents and to admit established facts. 

To require that trial-type RFAs be filed at least thirty days before the fact discovery close would move the fact discovery up at least thirty days, so that all discovery was exchanged and disputes resolved at least thirty days prior to the fact discovery close.

The Court also noted that it was not giving blanket approval to plaintiff’s RFAs.  For example, some were duplicative.  So, the Court ordered its parties to meet and confer to narrow any issues regarding the RFAs.