this memorandum opinion and order are stricken (though no fault
is ascribed to Flohr's counsel as to Reqs. 2, 13 and 22-24, as to
which there has been a bona fide disagreement). New and properly
framed answers (presumably straight-out admissions, unless truly
legitimate reasons support some other response to any Requests)
must be provided on or before April 29, 2002. And because the
bulk of the objections that have been raised by Flohr neither
satisfy any of the criteria set out in the last sentence of Rule
36(c) (2) nor comport with the requirements of objective good
faith expected of every lawyer and client, Flohr is ordered to
pay 90% of the attorneys' fees and expenses incurred in bringing
the current motion.! Counsel for the parties are expected to
seek to reach agreement on that amount before submitting any

areas of difference for resolution by this Court.

Cie MeO Farha

Milton I. Shadur
Senior United States District Judge

Date: April 17, 2002

+ It would seem that 10% represents a generous allocation
of the portion of fees and expenses that should be attributable
to the legitimately controverted Request answers.

4


simple matter for Flohr to beef up his present declinations to
respond with the just-quoted type of statement specified in Rule
36(a), coupled with the reasons for the insufficiency of
available evidence to produce a “yes” or “no” response. In that
regard, see this Court's opinion in Cada v. Costa Line, Inc., 95
F.R.D. 346 (N.D. Ill. 1982).

Next, an entire set of Flohr's remaining objections--
objections in which he urges that Requests framed in terms of
Comdisco stock being “trading at its all-time high” (Req. 30), of
Comdisco's plan to embark on “significant business opportunities”
(Req. 12), of the “nature of Prism's business” (Req. 16), of the
“nature and extent” of Comdisco's Ventures business (Req. 11) and
of things occurring “on or shortly after” certain dates (Reqs.
36, 37 and 38)--are too vague to permit informed answers. Those
objections do no credit to presumably responsible counsel, and
they too are rejected.

Finally, Flohr's assertions that a “document speaks for
itself” (Reqs. 17-19) are no more acceptable for Rule 36 (a)
purposes than they are in a responsive pleading. In the latter
respect, see App. 43 to State Farm Mut. Auto. Ins. Co. v. Riley,
199 F.R.D. 276, 279 (N.D. Ill. 2001). All of those responses
must be redone as well.

Conclusion

All of the Flohr responses to the Requests identified in


ETT

Mirui®Seer Form (06897)

United States District Court, Northern District of Illinois

Name of Assigned Jud i 3 . Sitting Judge if Oth
vor Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 01 C3187 DATE 4/17/2002
CASE Thomas Flohr vs. Comdisco, Inc. et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

(11)

MOTION:

DOCKET ENTRY:

(I) a Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer brief due____.

(4) Q Ruling/Hearing on set for_ at

(5) im Status hearing[held/continued to] [set for/re-set for] on__set fora

(6) ao Pretrial conference{held/continued to] [set for/re-set for]on___—set for at__

(7) oO Trial[set for/re-set for]on__at

(8) a [Bench/Jury trial] [Hearing] held/continued to _aat

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) (O General Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

(| [Other docket entry] _ Enter Memorandum Opinion and Order. All of the Flohr responses to the requests identified

in this memorandum opinion and order are stricken. New and properly framed answers must be provided on or before April

29, 2002. And because the bulk of the objections that have been raised by Flohr neither satisfy any of the criteria set out ii,
the last sentence of Rule 36(c)(2) nor comport with the requirements of objective good faith expected of every lawyer
client, Flohr is ordered to pay 90% of the attorneys’ fees and expenses incurred in bringing the current motion. Counsel
the parties are expected to seek to reach agreement on that amount before submitting any areas of difference for resolution by |
this Court. Grant motion (27-1)

for

a (For further detail see order attached to the original minute order.]

No notices required, advised in open court. sine Document

Number

No notices required.
aT number of notes

Notices mailed by judge’s staff. wR 18 2002

Notified counsel by tetephone. date dockered

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

an7n2002
date mailed notice
courtroom
SN deputy’s SN
initials

Date/time received in
central Clerk’s Office smaiting deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THOMAS FLOHR,

Plaintiff,

COMDISCO, INC., et al.,

DOCKETED

APR 1 8 2002

)
)
)
. )
v. ) No. 01 C 3187
)
)
)
)

Defendants.

MEMORANDUM OPINION AND ORDER

Nicholas Pontikes ("“Pontikes”) has filed a motion targeting
a number of responses by Thomas Flohr (“Flohr”) to a series of
Requests to Admit (cited “Req. --”) that Pontikes had tendered to
Flohr. With Flohr now having responded with his own Memorandum
of Law (cited “Mem.--”), the motion is ripe for resolution. As
explained in this memorandum opinion and order (which takes up
the Requests in the same order as addressed by the parties’
submissions), almost all of the objections interposed by Flohr
are totally without merit.

Flohr Mem. 5-7 quibbles about Req. 25's use of the locution
that Flohr “had the opportunity” to sell some of his Comdisco
stock “during certain quarterly windows starting in February
1999.” There is no reason that Flohr should not flat-out admit
that Request. Whatever reasons he may assert for not having sold
the stock are in no way waived or forfeited by such a truthful
response. After all, the Requests are properly intended to

enable Pontikes to stake out his position on waiver (or


forfeiture) --and as and when he does, Flohr will have an ample
opportunity to respond both factually and legally.

That applies as well to Flohr's objections to Req. 27.
Again Flohr's Mem. 7-8 argues an unpersuasive irrelevancy as the
predicate for not giving a straightforward response, as he
should.

That goes as well for Flohr's objection that “Comdisco
insider” and “one of its top executives” are too ambiguous to
permit an informed answer to Req. 9. It is really nonsense for
his counsel to characterize those familiar terms as
insufficiently devoid of content to permit an unqualified “yes”
answer.

As for Reqs. 2, 13 and 22-24, counsel for the litigants
disagree as to Flohr's compliance with Fed. R. Civ. P. (*“Rule”)
36(a)'s provision that “[a]n answering 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 by
the party is sufficient to enable the party to admit or deny.”
Flohr claims that his responses don't violate that requirement
because they conform to an agreement reached between counsel.
This Court was not of course present during the parties'
discussion on the subject, but it seems unnecessary to resolve

any dispute as to what really transpired--instead it should be a