Forms of Discovery Under the Federal Rules of Civil Procedure

Forms of Discovery Under the Federal Rules of Civil Procedure

In civil lawsuits, long before a jury hears a single word about a case—indeed, long before any of the eventual jurors to hear a case knows they’ll need to report for jury duty—the lawyers and parties in the case are exchanging information. They do this through a formal process known as discovery. One party will request information from the other, the other will answer, and vice versa. Under the Federal Rules of Civil Procedure (FRCP), there are four common forms of discovery requests and responses that are used in virtually every case: oral depositions, requests for admission, interrogatories, and requests for production. This post discusses each in turn.

Oral Depositions

Depositions are governed by FRCP 30-32. An oral deposition is like pretrial testimony. A party to the case or a witness that may be called at trial is placed under oath and questioned by the parties’ lawyers. The depositions will at least be transcribed by a court reporter, and may also be recorded on audio or filmed. During the deposition, a lawyer may object to any question, but since the judge isn’t present to give a ruling, the person giving the deposition will normally answer the question despite the objection. An attorney is not allowed to instruct his client not to answer a question except for limited purposes, such as preserving a privilege.

Requests for Admission

Requests for admission are authorized by FRCP 36. A request for admission is a request by one party that another party either admit or deny that something is true. If the party admits that the requested information is true, then the court will treat that as conclusively evidence that it is true. Importantly, if a party fails to respond to a request for admissions within 30 days, then the court will treat it as if the party admitted everything that was requested.

civil procedure tag cloud

Interrogatories

Like the name suggests, interrogatories are written questions from one party to another. They are governed by FRCP 33. In general, a party can only serve 25 interrogatories on another party. When the other party receives the interrogatories, the party has 30 days to answer. The answers must be made under oath, and every interrogatory must either be answered or objected to.

Requests for Production

FRCP 34 provides the rules for requests for production. A request for production is a written request by one party that another party produce any evidence or potential evidence requested. Requests for production tend to be very broad, because the party making the request wants to be sure that it is aware of everything that the opposing party has in its possession.

The purpose of the civil discovery system under the FRCP is to give all parties to a dispute access to all information of which the other party is aware. In modern practice, the surprise witness or unexpected evidence is rare, precisely because the FRCP allows such broad pretrial discovery. The four forms of discovery discussed in this post are part of that process, and enable each party to a case to develop the best possible case to later present to a jury at trial.

Do Social Media Users Abuse the First Amendment?

Do Social Media Users Abuse the First Amendment?

Death threats, bullying, and constant harassment can be seen in the comments of posts, pictures, and statuses of social media users all around the world. Their excuse for these cruel comments? It is their first amendment right of course! Internet users feel that they are allowed to express themselves and say what is on their minds due to the protection of the first amendment.

I agree with that last sentence to an extent. I feel that there are some amazing discussions that go on in YouTube comment sections, online articles, and even Instagram posts about important issues going on in our world. If we did not have the power to freely express ourselves, a lot of the powerful thoughts and points of views that I have read would have never been made available to myself and to other users.

That being said, I feel that things are getting out of control. These internet “trolls” are not just expressing themselves anymore, they are literally spreading hate and violence. I promise you that I see at least one death threat every time I am genuinely reading through comment sections of different social media platforms. I see sexual harassment comments, obscene comments, violence promotion, excessive bullying, and just angry people who want the rest of the world to feel their pain.

picture of the first amendment in the bill of rights

I do not understand how this is okay, first amendment or not. There are restrictions to the first amendment. Why are those restrictions not being enforced? I understand that there are millions of people using these sites, and it is probably not possible to catch every single person. But, however, I do believe that something can be done. You are telling me that we are spending money on and possibly have the ability to start cloning animals, and we cannot find a way to monitor and prosecute these sick people on the internet?

I know that a lot of the comments are in fun or are meant to be really dark humor. However, I have seen too many disturbing comments that are detrimental to internet users who just want to post a picture without being ridiculed or threatened. I have said it once, and I will say it again. Social media users are abusing the internet, and the first amendment needs to be amended to include social media. Words are powerful, and so is social media. The first amendment needs to be just as powerful to gain some control in this country and start making citizens treat one another with respect.

What do you think? Am I out of line here? Do you agree with me? Please share, comment and let me know your thoughts. I will continue to post some awesome articles that are both informative and opinionated. Thanks for stopping by!

What Makes a Contract Binding

What Makes a Contract Binding

What Makes a Contract Binding?

A contract is binding if there is an agreement between parties and consideration for the agreement. I will talk more about these two elements below. Though a proper agreement and consideration exists, there may still be routes for one party to get out of a contract that they previously signed.

Agreement

An agreement is more than it may seem. In order to be legally binding, an agreement to contract must show mutual assent on behalf of both parties. Usually, this is satisfied through an offer to contract and an acceptance of that offer. An acceptance of an offer is accepting every term of the offer. If someone bargains with the other party to change terms after an offer has been extended, then there is no legally binding contract. Additionally, if someone rejects the offer, then no contract is created.

Consideration

In addition to an agreement, there must be consideration in order to form a legally binding contract. Consideration is a bargained exchange between the two parties. This can take the form of a performance or return promise, forbearance or creation, modification or destruction of a legal right.

picture of a contract being ripped up

For example, a performance or return promise is agreeing to pay a certain amount for services. Forbearance would be agreeing to abstain from acting on a legal right in consideration of the contract. An example of forbearance is agreeing to abstain from drinking alcohol in order to inherit money. The creation, modification or destruction of a legal right can take the form of forbidding someone from voting in return of money.

Defenses to Contract Formation

Even if there is an adequate agreement and consideration, there are still potential options for someone attempting to get out of an otherwise valid contract. Some examples of defenses to contract formation are:

  • Lack of Capacity for Parties to Contract
  • Contract Created Under Duress
  • A Misrepresentation of an Essential Element of a Contract
  • A Mistake on Behalf of a Party Contracting
  • A Mistake in the Contract
  • Public Policy Arguments Against the Content of the Contract

While not all of these defenses are available to everyone wishing to get out of a contract, many times contracts are actually unenforceable. This happens because parties contract without actual knowledge of contract law. They believe that a handshake or personally written contract will hold up in court, but unfortunately, they frequently do not. While no one should ever enter a contract lightly, it is important for parties to know and understand their rights once they already have. Here is a great article from Entrepreneur.com that talks about all of this!