Posted on 06/15/2011 8:52:24 AM PDT by westcoastwillieg
The state of Hawaii claims that the "birth certificate" for Barack Obama in its files presumably the document that was copied and distributed by the White House remains confidential.
The image released April 27 by the White House was described by administration officials as "proof positive" of Obama's Hawaiian birth.
At that time, officials in Hawaii's health department and governor's office refused to provide confirmation to WND that the image released by the White House accurately represented the birth documentation in the state's custody.
Now, officials have refused to respond to a subpoena requesting the birth record, citing confidentiality...
(Excerpt) Read more at wnd.com ...
I found the filed June 2nd orders.
...Well not everything has gone wrong. On June 1st, Lamberth denied in part the defendant's motion. Taitz has since refiled documents with the redacted SS numbers.
And
The Obama government has 14 days left on the clock for any dispositive motion to dismiss the case.
Your excuses and comments are thin and ridiculous. Certainly Taitz is a putz, but in this situation, the real incompetence/dishonesty is in the state of Hawaii. Nagamine’s actual legal response to Orly’s subpoena was the objection under Rule 45. There’s NO NEED for an objection if the subpoena was truly invalid or improperly served. Nagamine says they are taking the position that the subpoena was improperly served, yet she has failed to state how or why she came to that conclusion. The ONLY so-called confusion to be avoided was due to Nagamine’s inability to support her contention that the subpoena’s were served improperly, thus she was left with two choices: 1) produce the documentation or allow inspection of the documents as requested or 2) file an objection. She chose to do the latter, but her objection fails because the cited law grants direct and tangible interest to Taitz.
Another little quirk of legal practice: He signed the order on June 1, but it wasn’t “entered” until June 2. You don’t count the day of service (6/2) so Day 1 is 6/3. If I’m reading my calendar correctly, the 30th day falls on 7/2. When a deadline falls on a Saturday, Sunday or federal holiday, the deadline is extended to the next business day, in this case 7/5. Tho, they have already developed their motion so they may file early and enjoy the holiday!
The subpoena is self-evidently invalid to anyone with competence in the subject manner, as Orly will discover when she tries to find someone to enforce it. That's why the response simply noted it did not comply with FRCP. No further elaboration is needed.
Why do you get so angry about issues of which you are obviously uninformed? There are probably any number of things that you are good at that would benefit from application of that energy.
Her so-called clarification is completely unrelated to how the subpoena was served and it assumes the subpoena was valid in order for the objection to be meaningful.
No, her clarification essentially says "if your subpoena were valid, my objections under the FRCP would be ..."
If Nagamine recognized the subpoena as valid, she would have filed a objection with the court ... via a motion to have it quashed by the court. She didn't do that because the U.S. District Court for D.C. isn't the proper court from which to issue said subpoena. (Again, read Rule 45 in its entirety.)
So, once again:
The subpoena was improperly served and is therefore invalid. Loretta Fuddy has no duty under the FRCP to respond or comply. She can simply ignore the invalid subpoena. Nagamine tells Orly exactly that in her written response. However, for clarification to Orly, Nagamine outlines what the objections would be under the FRCP ... if the subpoena were properly served and therefore valid.
I missed this last night. Did you ultimately find what you needed?
Yes, thank you .. I went back to the scribd site and was able to download all the docs. Not exactly what I wanted to see, but I did get the docs, except of course those the judge ordered sealed.
As I suspected, the Amended (redacted) Complaint was filed/entered on the docket @ #17 retroactive to the 14th. So now it’s up to the SSA to file its motion (by my calculation on 7/5).
Boy, that's a mouthful in four short words. It boils down our long, detailed conversation to the absolute essential point.
Orly gets almost everything incorrect because she does not follow simple formalities. The law is about formalities. One has to follow the rules. Orly doesn't. She seems to think she's the pirate Captain Barbosa and that the FRCP are "more like a set of guidelines really, than actual rules."
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"FOIA Facts: Inside the Process of Preparing a Vaughn Index By Scott A. Hodes, Published on September 29, 2003
Anyone who has ever been involved in Freedom of Information Act (FOIA) litigation is aware of the strange document that determines the outcome of many FOIA cases. This document, known as a Vaughn Index, is what agencies prepare to justify any FOIA withholdings they have made.
When the FOIA was created, there was no mechanism in the Act for the government to justify its withholdings or for plaintiffs to have a description of what the information being withheld from them was. The Court of Appeals for the District of Columbia Circuit came up with an answer in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The DC Circuit required agencies to prepare an itemized index, correlating each withholding with a specific FOIA exemption and a justification for that justification. Vaughn at 827. The required justification became standard in almost all FOIA cases.
The only alternative to a Vaughn Index is for agencies to submit their withheld material to the court in camera, and then let the court decide if the agencies processing was proper. This alternative, however, has many drawbacks. Plaintiffs receive no opportunity to challenge the redactions because they dont know the agencies rationale for withholding them. Defendant agencies lose control over their documents, and in the case of an overzealous judge, may lose appellate rights. Finally, courts would be overburdened if they had to review all the raw documents withheld in the hundreds of FOIA cases brought each year.
A plaintiffs challenge of the governments use of an exemption in a FOIA case triggers the need for the government to produce a Vaughn. A number of factors determine exactly how the finished Vaughn will look. The Vaughn Index can take many forms such as a straight affidavit, a narrative document, an affidavit with a chart or index detailing the withholdings attached, or a hybrid of any of these examples. All Vaughns serve the same purpose; give a meaningful justification for any withheld materials.
The bottom line for any Vaughn Declaration is that that it must allow a court to decide if the agencys FOIA withholdings were proper. The types and size of the withholdings will often dictate the format the declaration takes. For instance, if only a few pieces of information are withheld, a simple affidavit justifying them will most likely be more than adequate. However, a case involving hundreds, or even thousands of documents, and probably thousands of redactions will require more than a small affidavit. As the amount of work involved in a large Vaughn is a huge strain on an agencys legal and FOIA resources, the agency will seek to provide a justification for only a sample of the withheld material. Additionally, the agency may seek to provide a coded Vaughn. A coded Vaughn involves giving each redaction a specific code and then providing a justification for each code, rather than specifically pointing out where each redaction is on a certain page. The coded documents are then attached to a declaration, which is a general affidavit describing and justifying the redaction categories. A coded Vaughn can be done with a sample of the withheld material to provide a manageable size to the Vaughn. The bottom line is that agencies dont like preparing Vaughns and will do whatever it takes to make the final product as small and simple as possible.
Regardless of the format of the overall declaration, the most important thing in preparing a Vaughn is to adequately and meaningfully describe and justify the withheld documents. The person who will be the declarant must ensure that the redactions are properly described. Many agency declarants utilize a staff, often paralegals, to assist in the preparation of the declaration. A good trick for declarants is to read a draft declaration before reviewing the underlying withheld material. This enables agency personnel to see the case from the perspective of the plaintiff and the court. If the declarant can make no sense of something in a declaration, then the agency will know that there is a problem and a target for attack by the plaintiff. After review of the index, the declarant must then review the withheld material.
A Vaughn Index is a factual document. Legal arguments and case sites should rarely, if ever, be used. The Assistant United States Attorney (AUSA) will cite the applicable law in a dispositive motion used to support the Vaughn. Whenever an AUSA filed one of my Vaughns without a supporting brief, trouble was never usually far behind. The Court had nothing in front of it to rule on, and the bare declaration, no matter how well prepared it was, was usually just used as a punching bag by plaintiffs.
The use of computers has aided the Vaughn process by allowing agencies to use previous indices as templates. However, this can cause problems in that agencies that fail to carefully proofread their Vaughn products may add arguments and justifications not applicable to the case at hand. Furthermore, the use of previous indices may not provide justifications with enough specificity to justify the redactions in the case before the court. Another important step in the preparation of the Vaughn Index is that someone with both knowledge of FOIA case law and release authority should examine the underlying documents. In many cases, FOIA processors accidentally withhold information that is either intended for release or is clearly releasable. This material should be released before the filing of the Vaughn. Additionally, information that may be protectible by the agency, but for some reason the agency doesnt want to litigate over or push the envelope on should also be released before the Vaughn is prepared and filed.
It cant be stated too many times that preparing an adequate Vaughn document is a time consuming and labor intensive task. Agency FOIA department are nearly always under funded and inadequately staffed. The expertise of those who can prepare adequate Vaughn Indices is rarely appreciated. When Vaughn declarations are well done, the product can be quite large. This in turn creates a problem for the courts, which have large caseloads, and dont have the time to quickly review the large Vaughn Indices. Thus Vaughns and their underlying dispositive motions may sit on a courts docket for upwards of a year before being ruled on. However, it doesnt appear that any changes to FOIA litigation appear on the horizon. Thus, the Vaughn Index will be a staple of FOIA litigation for the foreseeable future.
Plaintiffs and their counsel, who are opposing a Vaughn Index for the first time, should make sure they can follow an agencys logic and rationales. If the plaintiff is having difficulty with the agencys Vaughn, they should contact counsel with FOIA expertise to help them review the document and assist them in preparing a meaningful reply to the governments document."
http://www.llrx.com/columns/foia2.htm<
"Plaintiffs and their counsel, who are opposing a Vaughn Index for the first time, should make sure they can follow an agencys logic and rationales."
Going to be fun seeing the SSA's pretzel logic. LoL.
If this case gets to a point where she has to litigate in open court, Taitz the “pro se litigant” likely becomes the practicing attorney in Lamberth’s court by fulfilling the requirements of rules “(c)” or “(d)” written in this previous post.
http://www.freerepublic.com/focus/bloggers/2735072/posts?page=280#280
The Hawaii attorney general did NOT say the subpoena was invalid (neither "self-evidently" nor by any actual substantation). She only mentioned "procedural defects" which does not speak to the validity of the subpoena, but how it was served.
That's why the response simply noted it did not comply with FRCP. No further elaboration is needed.
Don't be naive. Nagamine is trying to save face. She had a poor objection to the subpoenas. The best way to try to bolser that was to blow smoke that the subpoenas weren't served properly. If she had meat behind that claim, she wouldn't waste time coming up with an objection, especially such a weak and dishonest one.
Why do you get so angry about issues of which you are obviously uninformed?
What on Earth makes you think anyone is "angry"?? Such personal deflections only weaken your already weak position.
Sorry, but this describes you, not me. I showed very specifically where you had no clue about rule 45. Now you're acting out.
No, her clarification essentially says "if your subpoena were valid, my objections under the FRCP would be ..."
That's not a clarification of anything. A clarification would be "the subpoenas weren't signed" or the "subpoenas weren't written in English." Nagamine was blowing smoke because she didn't have a strong objection to the subpoenas. She's trying to make Taitz back down by attacking her procedural abilities.
If Nagamine recognized the subpoena as valid, she would have filed a objection with the court ... via a motion to have it quashed by the court.
I quoted the rule for you very specifically. Objections are to be filed with the attorney or party who issues the subpoena. A motion to quash a subpoena is NOT the same thing as an objection. Again, it would be better for you to refrain from posting on this subject until you actually understand the rule and other isses that are involved.
BT is working overtime to sustain his image at FR ... and exposing himself the more.
This is a good opportunity to help educate BT and others who don't seem to understand the process here. Here's a motion to quash a subpoena that cites and substantiates the type of "procedural defects" HI AG Nagamine bemoans, but fails to identify.
II. THE SUBPOENA IS IN THE WRONG FORM BECAUSE IT IS NOT SIGNED BY THE CLERK OF THE COURT.
Federal Rule of Civil Procedure 45 governs the procedures for serving subpoenas on nonparties to litigation. Under Rule 45(a)(3), a subpoena must be signed by either the clerk of the court or an attorney.
Plaintiff has not complied with this rule. The subpoena sent to USCIS is signed only by the Plaintiff; the clerk of courts signature appears nowhere on the document.
III. THE SUBPOENA WAS NOT PROPERLY SERVED BECAUSE IT WAS SENT BY MAIL.
Federal Rule of Civil Procedure Rule 45(b)(1) provides that a subpoena must be served by delivering a copy to the person named therein. The majority rule is that personal service of a subpoena is required, and that service by mail or other substituted service is insufficient.
IV. THE SUBPOENA WAS PREMATURELY ISSUED BECAUSE DISCOVERY HAS NOT OPENED.
Plaintiffs subpoena is premature because discovery in this case has not begun. Rule 45 Subpoenas, which are intended to secure the pre-trial production of documents and things, are encompassed within the definition of discovery, as enunciated in Rule 26(a)(5) and, therefore, are subject to the same time constraints that apply to all of the other methods of formal discovery.
See how these folks give very specific objections to how the subpoena was served and use an actual motion to quash in order to challenge the validity of the subpoena. Their motion specifically says, "federal courts nationwide have routinely invalidated subpoenas that were not served personally ..."
In contrast HI AG Nagamine gives only a vague claim that the Taitz subpoenas were not served in accordance with rule 45 but NEVER says anything in her response to challenge the validity of Taitz's subpoenas. She "avoids confusion" over the validity of said subpoenas by following rule 45 and making an objection to Taitz over said subpoenas.
As for the example I gave ... it was from the United States Citizenship and Immigration Service challenging a subpoena issued in the Hollander lawsuit versus McCain.
The language from the Rule quoted and underlined in the last paragraph of your post refers to what was requested in the subpoena, not to the subpoena itself. That language presumes that the party has been properly “commanded.”
I.e., if I were a lawyer and subpoenaed your bank or IRS records for the past ten years, and that was not meant to lead to admissible evidence, you or your attorney would send me a written objection to the specific request or requests. That is different from an objection to the validity of the subpoena itself.
Here’s that language:
“A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises ...”
I’m not sure if this is what you intended, but you’re agreeing with me. Nagamine’s objection to Taitz was based on being properly commanded under Taitz’s subpoenas. If Nagamine was really challenging the validity of subpoenas themselves, then a motion to the court to quash the subpoenas would be a more suitable response over what Nagamine called (but did not identify) as “procedural defects.” See my previous post.
I went back and re-read the Nagamine letter and the 2 subpoenas as well as Rule 45 because I wasn’t sure that the subpoenas were or were not issued and/or served properly. (and really didn’t want to take any more time on this!) I don’t see a record of how they were served, but if they weren’t issued properly, that is a moot point.
At this point I have to agree that Nagamine is right in Paragraph 2 where she states that neither subpoena was issued in accordance with FRCP, Rule 45. I don’t know that Nagamine had any duty to enumerate the errors. It would be up to the issuing party to determine the defects) based on that rule, and cure them.
Rule 45(a)(3) “Issued by Whom” states:
“The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.”
Neither subpoena was issued by the Clerk of the Court. Both were issued/signed by Dr. Taitz as “attorney.” However, she is NOT an attorney admitted to the bar in those courts and is not an “officer” of either court, and thus is not authorized to issue subpoenas in either court. The subpoenas are invalid. Bottom line: HI is not ‘commanded’ to do a thing. Why move to quash an invalid subpoena?
And this, my FRiend, is why Dr Taitz needs an experienced local counsel. This rule applies in every federal court, so should be known to all attorneys who practice in any federal district court.
Succinct and cogent.
In this case, however, I don't think the defects are curable.
We shouldn't have to guess or wonder. If there's a problem with how the subpoenas were issued or served, it would be easy enough to express a refusal to comply solely on that basis. I've already shown a motion to quash a subpoena that listed several ways in which a similar subpoena was allegedly not issued properly and not served properly. The person receiving a subpoena does not have the legal authority to make a determination of the validity of that subpoena, but theoretically it could be ignored at risk of contempt of court.
Neither subpoena was issued by the Clerk of the Court. Both were issued/signed by Dr. Taitz as attorney. However, she is NOT an attorney admitted to the bar in those courts and is not an officer of either court, and thus is not authorized to issue subpoenas in either court. The subpoenas are invalid. Bottom line: HI is not commanded to do a thing. Why move to quash an invalid subpoena?
Because the person receiving it has no legal authority to declare a subpoena to be invalid. Neither the HI DOH nor the HI AG has that power. If there's a question about validity, it needs to be addressed to the court. Nagamine did not do this. She responded instead by an objection directly to the issuing party, which is prescribed by rule 45. Taitz SHOULD go back to the judge and get an order to compel production of the documents. There's not a compelling legal reason NOT to produce the documents since there should no longer be a privacy interest (due to Obama theoretically releasing his own records). Further, Hawaiian law makes several disclosure exceptions, with at least two that qualify Taitz to get disclosure of the records or a legal verification of the records as disclosed by Obama, such as 338-18(g)(4) "A private or government attorney who seeks to confirm information about a vital event relating to any such record which was acquired during the course of or for purposes of legal proceedings;"
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