1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

AARON PATTERSON, ) 

) 

Plaintiff, ) 

) Case No. 03 C 4433 

) 

v. ) Judge Joan B. Gottschall 

) Magistrate Judge Geraldine Soat Brown 

JON BURGE et al., ) 

 ) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

 Defendants Richard A. Devine (“Devine”), State’s Attorney of Cook County, and 

former Assistant State’s Attorney Peter Troy (“Troy”) have moved to have the court 

determine the sufficiency of plaintiff Aaron Patterson’s (“Patterson”) responses to Devine 

and Troy’s requests to admit, and to have the requests deemed admitted pursuant to 

Federal Rule of Civil Procedure 36(a)(6).1 For the reasons set forth below, the court 

grants in part Devine and Troy’s motion and deems admitted Requests Nos. 4, 5, 6, 7, 18, 

21, 27, 31, 32, 37, and 38. The court denies Devine and Troy’s motion with respect to 

Requests Nos. 1, 2, and 3 and deems those responses denied by Patterson. 

I. BACKGROUND

 On May 29, 2007, Devine and Troy sent their first set of Requests to Admit to 

Patterson. On June 30, 2007, Patterson served his responses to Devine and Troy’s 

Request to Admit. Devine and Troy argue that Patterson’s responses to Requests Nos. 1-

7, 18, 21, 31, 32, 37, and 38 (the “Requests”) are insufficient under Rule 36. 

 

1

 In their brief, Devine and Troy state that their motion is brought “pursuant to Fed. R. Civ. P. 36(c).” 

There is no such Federal Rule of Civil Procedure. The court presumes that Devine and Troy actually mean 

Federal Rule of Civil Procedure 36(a)(6) and will interpret their motion in light of that and the other 

relevant subsections of Rule 36. 
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 On July 11, 2007, in a letter to Patterson’s attorney, Carl Barry (“Barry”), Devine 

and Troy called attention to what they perceived as deficiencies in Patterson’s answers to 

the Requests. In a subsequent telephone call, Barry indicated that amended responses 

would be provided shortly. On August 24, 2007, Troy and Devine left a follow-up 

telephone message with Barry, indicating that the amended responses had not yet been 

received and inquiring as to when they might be expected. Barry replied via a telephone 

message, allegedly informing Troy and Devine that he would “work it out regarding 

amending the responses” and invoking the court’s stay order of August 29, 2007.2

 

On October 2, 2007, Devine and Troy again wrote to Barry, requesting that, in 

light of the expiration of the 30-day stay order, Patterson’s amended responses be 

transmitted to them within 14 days. On October 15, 2007, Troy and Devine again called 

Barry to inquire as to when the requested amended responses would be forthcoming. In 

that call, Devine and Troy indicated that, in view of their lack of success in obtaining 

amended answers to the Requests, they would have no alternative but to file a motion 

asking the court to deem the Requests admitted. In response, Barry sent an email to 

Devine and Troy on October 17, 2007, indicating that at the time he was then on trial, but 

that he would submit the amended responses “as soon as possible.” Devine and Troy 

responded on October 24, 2007, indicating that, in light of Barry’s representations in his 

latest email, they would temporarily forego filing their motion. 

On November 14, 2007, Devine and Troy again emailed Barry, inquiring as to 

when the amended responses would be provided. That email went unanswered. On 

November 28, 2007, Devine and Troy called Barry and were referred to his partner, 

 

2

 On August 29, 2007, Magistrate Judge Brown granted Patterson’s agreed motion for a 30-day continuance 

of all motions and discovery matters in this case. 
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Adam Loewy (“Loewy”), whom Barry said was handling the matter at that time. Mr. 

Loewy allegedly stated the he was unable to say when, if ever, the amended answers 

would be forthcoming and stated further that he believed the original answers were 

sufficient. 

In response, Devine and Troy filed the instant motion on November 20, 2007. On 

January 18, 2008, Magistrate Judge Brown set a briefing schedule for the motion, 

ordering Patterson to respond by February 1, 2008 and setting a hearing date of February 

13, 2008. No responsive brief was filed by Patterson or his attorneys by the required 

date. On February 7, 2008 this court ordered that the referral to Magistrate Judge Brown 

be withdrawn, requiring that the instant motion (and all other matters) be noticed for 

hearing before the court. The hearing date before Magistrate Judge Brown was 

consequently stricken on February 13, 2007. 

Devine and Troy renewed their motion before this court on March 17, 2008 and, 

on March 20, 2008, the court again set a briefing schedule on the motion, ordering 

Patterson to respond by May 21, 2008 and Devine and Troy to respond by June 11, 2008. 

Neither party has submitted briefs in response to that order and the court consequently 

considers the matter fully briefed. 

II. ANALYSIS

Under Federal Rule of Civil Procedure 36(a)(3), a request to admit the truth of 

any matter relating to the present action is deemed admitted, unless the party to whom the 

request is directed serves on the requesting party a written answer or objection, signed by 

the responding party or his attorney, within 30 days. Fed. R. Civ. P. 36(a)(3). Moreover, 

if the responding party refuses to admit the matter in question, his answer must 
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specifically deny it or state in detail why the answering party cannot truthfully admit or 

deny it. Fed. R. Civ. P. 36(a)(4). A denial must fairly respond to the substance of the 

matter; and when good faith requires that a party qualify an answer or deny only a part of 

a matter, the answer must specify the part admitted and qualify or deny the rest. Id. The 

answering party may assert lack of knowledge or information as a reason for failing to 

admit or deny only if the party states that it has made reasonable inquiry and that the 

information it knows or can readily obtain is insufficient to enable it to admit or deny. Id. 

Finally, the grounds for objecting to a request must be stated. Fed. R. Civ. P. 36(a)(5). A 

party must not object solely on the ground that the request presents a genuine issue for 

trial. Id. On finding that an answer does not comply with Rule 36, the court may order 

either that the matter is admitted or that an amended answer be served. Fed. R. Civ. P. 

36(a)(6); see also Avante Int’l. Technology, Inc. v. Hart Intercivic, Inc., Civil No. 07-

169-DRH, 2008 WL 2074093, at *1 (S.D. Ill. May 14, 2008). 

A. Request Nos. 1-7. 

Requests Nos. 1-7 comprise the following Requests to Admit: 

1. Richard A. Devine left his position as an employee of the Cook 

County State’s Attorney’s Office and entered into the private practice 

of law in September 1983. 

2. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office at the time of your arrest on April 20, 1986, for the 

murders of Rafaela and Vincent Sanchez. 

3. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office at the time you were charged with the murders of 

Rafaela and Vincent Sanchez in May of 1986. 

4. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office during your jury trial for the murders of Rafaela and 

Vincent Sanchez in September 1989. 
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5. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office at the time a Cook County jury found you guilty of 

the murders of Rafaela and Vincent Sanchez in September 1989. 

6. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office when you were sentenced to death in October of 

1989 for the murders of Rafaela and Vincent Sanchez. 

7. Richard A. Devine was not employed by the Cook County State’s 

Attorney’s Office when the Illinois Supreme Court upheld your 

conviction for the murders of Rafaela and Vincent Sanchez in 

December of 1992. 

Patterson’s response to each of these questions is identical, viz.: 

Plaintiff admits that Richard A. Devine left his position as the First 

Assistant State’s Attorney of Cook County in 1983, and that from 1988 to 

1997 Richard A. Devine was in private practice. Otherwise, denied. 

Devine and Troy’s Requests Nos. 1-7 are relatively straightforward Requests 

based on facts. However, although Patterson admits that Devine left his position as the 

First Assistant State’s Attorney of Cook County in 1983, and that Devine was in private 

practice from 1988 to 1997, Patterson does not address Devine’s professional 

employment between 1983 and 1988. The final two-word sentence, therefore, implicitly 

denies that Devine left the Cook County State’s Attorney’s Office during that interval.3

 

Fed R. Civ. P 36(a)(4) states that “[i]f a matter is not admitted, the answer must 

specifically deny it. Although Patterson does not explicitly deny that Devine left the 

Cook County State’s Attorney’s Office between 1983 and 1988, Patterson does deny 

those parts of the Request not admitted (“Otherwise, denied”). Although rather 

inferential, not to say barely adequate, that is nevertheless sufficient denial for the court 

 

3

 Logically construed, Patterson’s answer admits that Devine left the specific position as First Assistant 

State’s Attorney but denies that Devine was not employed by the Cook County State’s Attorney’s Office 

(presumably in some other capacity) until 1988, when he entered private practice. 
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to understand that the portions of the Requests that address Devine’s professional 

employment between 1983 and 1988 are denied by Patterson. 

Therefore, Requests 1 through 3 are deemed denied by Patterson, since they 

address Devine’s employment between 1983 and 1986. Requests 4 through 7 are deemed 

admitted by Patterson, since they deal with events occurring after the time at which 

Patterson admits that Devine was in private practice (and by inference no longer working 

with the Cook County State’s Attorney’s Office). 

B. Request No. 21. 

Request No. 21 comprises the following Request to Admit: 

21. Richard A. Devine was not the Cook County State’s Attorney or employed 

by the Office of the Cook County State’s Attorney at the time the 

Goldston Report was prepared. 

To which Patterson responds with his stock answer: 

Plaintiff admits that Richard A. Devine left his position as the First 

Assistant State’s Attorney of Cook County in 1983, and that from 1988 to 

1997 Richard A. Devine was in private practice. Otherwise, denied. 

 Patterson’s answer here is unresponsive. Patterson’s Third Amended Complaint 

alleges in ¶¶ 56 and 59 that the Goldston report was prepared in 1990 and disseminated to 

the public in 1992, during the interval during which Devine was admittedly in private 

practice. Request No. 21 is therefore deemed admitted. 

C. Request No. 18, 27, 31, 32, 37, and 38. 

Requests Nos. 18, 27, 31, 32, 37, and 38 read as follows: 

18. You do not know the identity of any person who claims to have been present, or 

was in fact present, at any alleged meeting between Richard A. Devine and Jon 

Burge or any other Area 2 defendant officers, wherein they purportedly discussed 

torture at Area 2. 
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27. During Andrew Wilson’s 1998 jury trial for the murder of Chicago Police 

Officers Fahey and O’Brien, the State did not use or rely upon any confession or 

statement by Andrew Wilson. 

31. Assistant State’s Attorney Peter Troy was not an employed (sic) by the Cook 

County State’s Attorney’s Office in February of 1982. 

32. Assistant State’s Attorney Peter Troy was not involved in the charging or 

prosecution of Andrew Wilson for the murder of Chicago Police Officers Fahey 

and O’Brien. 

37. You do not know the identity of any person who claims to have been present, or 

was in fact present, at any alleged meeting between Richard A. Devine and Peter 

Troy or any of the other defendants herein (Burge, Byrne, Pienta, Marley, 

Pedersen, McWeeny, Madigan, Danzi, Martin, Shines, Hillard, Needham, or 

Daley), wherein they purportedly discussed or agreed to falsely imprison, 

maliciously prosecute; (sic) intentionally inflict severe emotional distress upon, or 

otherwise deprive Aaron Patterson of his Constitutional rights, as alleged in 

paragraphs 71, 72, 75, 78, 92, 94 and 98 of your Third Amended Complaint. 

38. You do not know the identity of any person who claims to have telephone calls 

(sic) between Richard A. Devine and Peter Troy or any of the other defendants 

herein (Burge, Byrne, Pienta, Marley, Pedersen, McWeeny, Madigan, Danzi, 

Martin, Shines, Hillard, Needham, or Daley), wherein they purportedly discussed 

or agreed to falsely imprison, maliciously prosecute; (sic) intentionally inflict 

severe emotional distress upon, or otherwise deprive Aaron Patterson of his 

Constitutional rights, as alleged in paragraphs 71, 72, 75, 78, 92, 94 and 98 of 

your Third Amended Complaint. 

Patterson responds to all of these Requests with the same answer, viz.: “Do not have 

enough information at this time to admit or deny.” 

Under Rule 36(a)(4), an answering party may assert lack of knowledge or 

information as a reason for failing to admit or deny only if the party states that it has 

made reasonable inquiry and that the information it knows or can readily obtain is 

insufficient to enable it to admit or deny. Fed. R. Civ. P. 36(a)(4). If a matter is not 

admitted, the answer must specifically deny it or state in detail why the answering party 

cannot truthfully admit or deny it. Id.; see also Old Reliable Wholesale, Inc. v. Cornell 

Corp., No. 5:06-CV-02389-DDD, 2008 WL 2323777, at *1 (N.D. Ohio June 4, 2008). 
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Patterson’s bland assertion of lack of knowledge does not meet the required 

specificity of Rule 36(a)(4) with respect to why he cannot truthfully admit or deny the 

Requests. Moreover, these Requests were submitted at the conclusion of nearly three 

years of extensive discovery. And yet, with respect to Requests Nos. 18, 37, and 38, 

Patterson is unable to confirm whether he knows or does not know. His response to these 

three Requests is absurd. Although events may have possibly occurred in this case 

outside of both Patterson’s knowledge and the extensive scope of discovery, the Requests 

do not, in fact, address whether or not such events actually occurred. Rather, they 

address whether Patterson has any knowledge of these events. Patterson either knows or 

does not know, and his response is therefore manifestly deficient under Rule 36(a)(4). 

Likewise with respects to Requests 27, 31, and 32. Patterson fails to specify why, 

after three years of discovery, he cannot admit or deny the Requests. The requests are 

simple questions of fact that either fell within the ambit of discovery and/or Patterson’s 

own knowledge or did not. The court cannot accept responses that are so deficient to a 

straightforward Request to Admit, particularly given the strictures of Rule 36(a)(4) and 

the long procedural history of this case. 

Under other circumstances, the court might be content to order Patterson to file 

proper responses that address the Requests in a manner compliant with Rule 36(a)(4). 

See Old Reliable, 2008 WL 2323777, at *3 (ordering in part proper responses in place of 

those that apparently ignored discovery). However, the circumstances in this instance are 

particularly egregious. Patterson’s attorneys procrastinated and stalled, failing to return 

amended responses for the better part of a year, despite numerous requests from Devine 
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and Troy. They also flouted the briefing schedules set by both Magistrate Judge Brown 

and this court, ignoring court orders to submit briefs in response to this motion. 

At the same time, the court is mindful of the fact that there is presently a great 

deal of settlement money in dispute among the various attorneys who have represented 

Patterson, and that those counsel, among whom are prominently included Barry and 

Loewy, are zealously and energetically attempting to assert their rights to those funds as 

fees for their services. The court admonishes Barry and Loewy and reminds them that 

their duty as attorneys extends past their own private interests in this case.4

 In the 

meantime, the court deems as admitted Requests Nos. 18, 27, 31, 32, 37, and 38. 

III. CONCLUSION

 For the reasons set forth above, the court grants in part Devine and Troy’s motion 

and deems as admitted Requests Nos. 4, 5, 6, 7, 18, 21 27, 31, 32, 37, and 38. The court 

denies Devine and Troy’s motion with respect to Requests Nos. 1, 2, and 3 and deems 

those responses as being denied. 

ENTER: 

 __/s/ ___ ___

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: July 29, 2008 

 

4

 Since November 30, 2007, when the instant motion was first filed before Magistrate Judge Brown, Barry 

and Loewy have filed 18 (excluding notices of presentment) fee-related motions, responses, replies, and 

sur-replies.