Replies

You would have to read the motion to dismiss to determine what discovery may be reasonably related to the motion. My understanding is that the motion is the same ol’ same ol’ standing argument. This is a procedural issue that would not get to the merits or the BCs. However, thank God the judge has already signaled that he is not inclined to buy this argument. What he has done is to assign the motion to dismiss and discovery to the magistrate, who works under his supervision.

To establish standing, case law says “Factual allegations must be enough to raise a right to relief above the speculative level…”

See Wiki on federal discovery Rule 12(b)6):

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (No. 05-1126) (2007) (citations, internal quotation marks and footnote omitted)."

http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure

I think Orly may want to argue to the magistrate that she needs discovery of at least the Kenyan BCs (including deposition of Lucas Smith and the person in possession of the 1964 BC) to defend against the possibility of dismissal due to the speculative authenticity of those documents. During the Oct 5 hearing, Obama’s team can argue that Obama’s HI certified short form is prima facie evidence of his HI birth under federal rules and is entitled to a hearsay exception making production of the original vital records moot and this should render any claim of a Kenyan BC speculative at best.

Allegations of defects in Obama’s HI vital records are most certainly speculative absent probable cause to question the certified short form as could be established by discovery authentication of at least one of the Kenyan BCs. So I would think it could be argued to the magistrate next week that at the very least, discovery authentication of the Kenyan BCs is required to defend against the Motion to Dismiss on Oct 5.