Berg v. Obama:
Berg Says Obama, DNC Admit Allegations Due to Procedure
Obama Birth Certificate Federal Lawsuit

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UPDATES at end of story.
UPDATE #1 – 1305 EDT – Crack Research Department Weighs in

An interesting turn of events in the federal lawsuit filed by Phillip Berg demanding proof from Barack Obama that he is an American citizen and eligible for the U.S. presidency.

From Jeff Schreiber’s America’s Right – Berg: Due to Procedure, Obama, DNC Admit All Allegations:

According to Rule 36 of the Federal Rules of Civil Procedure, a party upon whom requests for admissions have been served must respond, within 30 days, or else the matters in the requests will be automatically deemed conclusively admitted for purposes of the pending action.

On September 15, as part of his federal lawsuit contending that the Illinois senator is ineligible, pursuant to the U.S. Constitution, to serve as president of the United States, Philadelphia attorney Philip Berg served Barack Obama and the Democratic National Committee with just such a request. Soon thereafter, on October 6, Barack Obama and the DNC acknowledged service in their motion for protective order, filed in an attempt to persuade the court to stay discovery. The Federal Rules require that a response to a request for admissions be served within the 30-day time limit, and Barack Obama and the DNC have not done so.

Therefore, this morning, amidst news reports that Barack Obama will be suspending his campaign for a few days so he can fly to Hawaii to visit his grandmother, who has suddenly fallen ill, Philip Berg will file two motions in district court in Philadelphia:

* A motion requesting an immediate order deeming his request for admissions served upon Barack Obama and the DNC on September 15 admitted by default, and

* A motion requesting an expedited ruling and/or hearing on Berg’s motion deeming the request for admissions served upon Obama and the DNC admitted.

Schreiber explains what this all means in the story at his site.

He does note:

Unless permitted by the court or allowed pursuant to a written agreement between the parties, the party served with the request must serve a response within 30 days. How serious is a failure to respond? This, from PreTrial, by Thomas A. Mauet:

The automatic provision of Rule 36 makes it a formidable weapon because inertia or inattentiveness can have an automatic, and usually devastating, consequence. Hence, there is one cardinal rule for practice under this provision: Make sure you respond and serve the response within the 30-day period.

More curious behavior from the Obama campaign–or rather, legal team?

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ALSO at DBKP:

* Washington Man Files Lawsuit over Obama Citizenship Questions
* Obama College, Medical, Birth Records: Who is Barack Obama?
* Obama Birth Certificate Federal Lawsuit: Video Released On YouTube
* Obama Birth Certificate Federal Lawsuit: Updates, News and Reactions
* Obama Birth Certificate Federal Lawsuit: The Curious Behavior of the Obama Campaign
* Obama, Bill Ayers, and FactCheck.Org: All Have Ties To Annenberg Foundation

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We’re not sure why the Obama team did not file the necessary papers in time.

Schreiber, who’s a straight shooter in his reporting on the story, ends his long and informative post with a quote from Berg on the significance of the non-action.

“It all comes down to the fact that there’s nothing from the other side,” Berg said. “The admissions are there. By not filing the answers or objections, the defense has admitted everything. He admits he was born in Kenya. He admits he was adopted in Indonesia. He admits that the documentation posted online is a phony. And he admits that he is constitutionally ineligible to serve as president of the United States.”

Two weeks before the election and things are going to be interesting.

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UPDATE #1 1305 EDT – Points to ponder from DBKP’s Crack Research Department

Our crack research department did some additional digging on the significance of this announcement.

They make these points:

1. It is not clear that Obama et al did not meet the deadline.
They could have served their response to Berg’s Request for Admission via US Postal Service (the same way he served his requests). Service by US Mail is effective on the date of mailing. Thus, Obama et al may well have served their response and Berg just hasn’t received it yet.

Excellent point.

2. As Jeff Schreiber noted in his post, FRCP 26(f) provides that the parties must first have a discovery conference before propounding discovery.
This has not yet occurred.

The Rule also provides that a party may request expedited discovery (as has Berg). However, the Court has not yet ruled on that motion, so the general rule still applies. Schreiber argues that Berg could “feasibly” argue that the Request for Admission is not a “true discovery mechanism” – but we don’t see the merit in that argument. Requests for Admission are, by the rules, a discovery mechanism, the purpose of which is to expedite and/or streamline further discovery requests. Berg is further hampered in this argument by virtue of the fact that he has also filed requests for production of documents. In other words, he was not relying on the Request for Admissions in order to streamline any of his discovery.

This is the point we thought was most important to include. We omitted this point (not in any attempt to distort the meaning of the story, but in haste. That’s why we’re updating.)

3. Furthermore, when a party has filed a motion to stay discovery before the deadline for responding to such discovery, courts routinely permit “extension” of the deadlines following its ruling. As one court noted, “It would be extremely inequitable and disruptive of judicial proceedings to permit the Rule to operate during the pendency of a motion to stay that very operation.”

4. Additionally, as Jeff Schreiber also noted in his post, the DNC can simply file a motion to “withdraw admissions deemed admitted.” Again, courts routinely permit such “amendments” so long as (a) the party was not acting in bad faith – even when the party’s failure to respond by the deadline was the result of “excusable neglect” or inadvertence; and (b) the order would not cause undue prejudice to the requesting party.

Schreiber argues that Berg can allege that the defendants failed to act in good faith and/or that Berg was prejudiced.

However, given that the defendants filed the Motion for Protective Order well before the discovery deadline (if, indeed, that deadline was operative by virtue of FRCP 26(f) somehow not applying), the argument that they failed to act in good faith seems a stretch. It’s also difficult to see how, from a legal perspective (if not from a public curiosity perspective), how Berg possibly could have been “unduly prejudiced.

[For more information and background on Philip Berg's civil action against Barack Obama and the Democratic National Committee, look to the right-hand side of the America's Right page for the list of related articles, updates and commentaries under the "BERG v. OBAMA @ AMERICA'S RIGHT" heading.]

by Mondo Frazier
image: dbkp

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