Answer Regarding Whether a Test Was Performed Does Not Violate Privilege

Itex, Inc. v. Work Rite Uniform Co., No. 08 C 1224, Slip Op. (N.D. Ill. Mar. 31, 2011) (Kim, Mag. J.). Judge Kim granted in part defendants' motion to compel supplemental answers to defendants' requests for admission. The requests at issue sought an admission regarding whether plaintiff had performed very specific tests as part of its pre-suit investigation. Plaintiff objected on the ground that answering the request would violate its attorney-client privilege and attorney work product protections. But the Court held that the requests were "artfully" drafted to avoid seeking any indication of whether the tests were performed at the request of counsel or not. Instead, the requests simply sought an admission as to whether the specific tests were performed at all. The Court also noted that the Federal Rules of Civil Procedure do not require proof of a denial, which had been given in this case despite that.

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