Both Judge Carter and Judge Land with their FRCP Rule 12(b)(6) dismissals for “failure to state a claim” denied standing to the plaintiffs thus precluding the discovery process in which all BC related documents can be authenticated to the extent possible, and witnesses, like Fukino, Obuko, the HI AB and Smith, can be deposed.
Judge Carter said that even if the Smith BC was fully authenticated by Kenya officials, Carter would be unlikely to give greater weight to a Kenya BC over an equally authenticated HI BC.
Judge Carter assumed, without having the HI vital records released, that discovery of those records would not raise questions and issues that might lead to greater weight being given to the Kenyan BC.
For example, the HI vital records may have been amended from showing a Kenya birth location to showing an HI birth location. Subsequent to such an amendment, “properly” filed, HI officials would be legally required to attest to an HI birth for Obama and precluded from making reference to the pre-amendment Kenya birth, such as is shown on the Blaine BC, for example.
Judge Robertson in the Hollister case also granted an FRCP 12(b)(6) dismissal by stating that Obama’s birth location had been Factchecked, blogged and twittered, none of which meets FRE requirements. Robertson, like Carter, precluded any discovery involving actual authentication of HI vital records in the context of HI Territorial Law 57 and statements of HI officials regarding amendments or Obama’s NBC status.
Theoretically (but not realistically), both Carter and Robertson might be overturned for failure to give adequate weight to the possibility that with discovery under the FRE, plaintiffs could prove-up their documents.
"Might," "may," "possibly" and "if" have no weight under the Federal Rules of Evidence.
The issue of the COLB's authenticity was not Carter's decision to make. In case you've forgotten, there are no laws, anywhere in either the Federal or State governments, that specifically demand a candidate for POTUS to present a birth certificate, and/or to provide proof of its authenticity.
On the other hand, an attorney filing a lawsuit asserting that a Kenyan Birth Certificate is authentic has to prove, by expert certification, that it is authentic.