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.
When the Obama team argues that the short form is enough she will undoubtly bring up that the short form that he presented was available to those not born in HI. At the very least he will require a certified orignal of the short form with the Seal etc.
The Kenyan birth certificate is not even mentioned in the motion to dismiss. The motion contains the usual reasons: lack of standing, lack of jurisdiction by the court, non-justicable political question, and lack of jurisdiction over the plaintiff's quo warrento claims. The chance that the judge would allow Taitz or Kreep to subpoena Obama's birth certificate to fight any of those is nill.
No one here has the first clue how the courts work.
You don’t argue facts in these pleadings. You argue law. (Though Orly does not seem to know this).
Evidence is not submitted in pleadings. Every birth certificate in the world is irrelevant at this moment.
The motion to dismiss is based mainly on two concepts:
1. Standing.
2. Political Question
Orly can have a stack of duely authenticated birth certificates signed by the President of Kenya and St. Peter himself. They don’t matter at this point in time.