What "Discovery" means in a law suit

A SUMMARY OF THE U.S. CODE, Federal Rules of Civil Proceedure

by John Charlton

(Sept. 18, 2009) — Recent cases regarding Obama’s eligibility have referred frequently to the concept of “discovery.”  Those questioning Obama’s eligibility often remark that in the “discovery phase” of any case, Obama would be exposed as ineligible for the presidency.

Since this concept is not well known outside of the legal profession, The Post & Email will summarize what the U.S. Code says about “discovery”, and how it may apply to any case, which challenges Barack Hussein Obama, on the grounds of his being not eligible according to the requirements of the U.S. Constitution, Article II, Section 2, paragraph 5.

WHAT IS THE U.S. CODE?

First, one must understand that though the U.S. Constitution is the “Supreme Law” of the land, the “fleshing out” of what that Law means, in the light of Congressional acts and Judicial rulings, is explained in the U.S. Code.  The U.S. Code is published every six years, by the House of Representatives’ Office of Law Revision Counsel.

WHAT DOES THE U.S. CODE SAY ABOUT “discovery”?

The concept of “discovery,” according to the Federal Rules of Civil Proceedure, is covered in U.S. Code, Title 28 App., Chapter V, Rule 26.

“Discovery Phase” refers to that part of a trial, in which the evidence necessary to support the claims or arguments made by plaintiff or defendant are to be substantiated by evidence, which is not had by the respective party.  The action whereby this evidence is obtained is called “discovery”.

Thus if the Plaintiff charges x, y, or z, and does not have access to this evidence, their counsel will request such evidence in the Discovery Phase.

Evidence which might be sought in an eligibility case

Hence, in the discovery phase, in such cases which would deal with Obama not meeting the Article II requirements of the U.S. Constitution, a plaintiff might request:

1) Obama’s birth certificate(s) from known or suspected jurisdictions

2) Obama’s adoption records, if they are alleged to exist

3) Obama’s parent’s divorce filings

4) Obama’s passports

5) Obama’s school records, in the U.S.A. or in Indonesia

6) Any documentation regarding Obama’s residency

7) Any documentation from the United Kingdom, Kenya or Indonesia regarding his affirmation or renunciation of citizenship in those countries.

8) Any financial aid grants, received or alleged to be received, by Obama which would speak to his citizenship status and residency

9) Any document which might pertain to an allegation of conspiracy by Obama or supporters to conceal, forge, obstruct the acquisition, of any of the above documents.

Requirements of the U.S. CODE regarding such requested evidence

Evidence requested in the Discovery Phase must conform to Rule 401:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

And to Rule 402:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Some types of evidence are not generally admissible, as per Rule 802.

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Hearsay is defined as:

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Hearsay is generally not admissible, but there are exceptions.

Evidence, furthermore must be authenticated (Rule 901), and in the case of foreign documents, requires a Motion of Rogatory Discovery.

Evidence Obama’s lawyers must hand over

What evidence the Defense must consign, without request by Plaintiff, during the Discovery phase, will be a crucial part of cases questioning Obama’s eligibility; Rule 26 addresses this:

(a) Required Disclosures; Methods to Discover Additional Matter.

(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26 (a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;

(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and

(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Time-table For Discovery Phase

The discovery phase follows a scheduled, back and forth, between plaintiff and defense, in which evidence is requested, and arguments are made against the request.  First there is a scheduling conference, then after 14 days, requests for evidence must be submitted; thereafter the opposing side has 30 days to object. Rule 26 specifies this:

These disclosures must be made at or within 14 days after the Rule 26 (f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Rule 26 (f) discovery plan.

In ruling on the objection, the court must determine what disclosures—if any—are to be made, and set the time for disclosure.

Any party first served or otherwise joined after the Rule 26 (f) conference must make these disclosures within 30 days after being served or joined unless a different time is set by stipulation or court order.

A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party’s disclosures or because another party has not made its disclosures.

Consequently, actual production of admissible evidence might take months.

0 Responses to "What "Discovery" means in a law suit"

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