“In the scenario of two certified documents - one from Hawaii and one from Kenya - the presumption is with the defendant. The burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid.”
Thank you for pointing out that the tie goes to the defendant. Judge Carter seemed to me to be saying the tie goes to the US document, but I can see that by your logic he was stating that in the event of a tie in this case, the win goes to the defendant who happens to have a US authenticated document.
You say that Orly's two BCs (Lavender and Smith) are worthless, but this was not an evidentiary hearing and the provenance, in a trial on the merits, could have been proved up in discovery including an authentication by a Kenyan authority, but Judge Carter precluded that.
You say the “burden of proof would therefore shift back to Orly to prove that the certified Hawaiian document is invalid” but there has never been a certified HI BC document entered into evidence in a US court. The Factcheck COLB is also “worthless” until “proved up” at trial.
Judge Carter, by granting the motion to dismiss, precluded discovery of the original HI vital records, which in my understanding is “best evidence” under the FRE of the source record for the Factcheck short-form COLB.
Thus Judge Carter precluded Taitz from the possibility of being able to authenticate the Kenyan BC. Taitz was denied the possibility of submitting evidence that the Kenya BC was more credible than the HI vital records, records which may well contain amendments that undermine credibility.
That is what discovery is supposed to establish through evidence obtained and submitted under the FRE.
To recap: Carter presumed that the best case for Taitz, even with discovery, was a tie and I say that was an error! Clearly, the best case for Taitz was to undermine the HI vital records and show that the Kenya BC was more reliable. To justify his Rule 12(b)(6) grant of dismissal Carter was required to anticipate the best outcome for the plaintiff and dismiss only if that outcome couldn't prevail. Carter was required to anticipate the best outcome for Taitz, and he didn't do that, not that she as a lawyer could have pulled it off or that any Kenyan official authentication would be forthcoming, but that wasn't the issue at the Oct. 5 hearing.
You still aren’t getting it. You are close. But you aren’t there.
Orly’s argument is that the only way she can authenticate the BC is through discovery. In other words, she admits that she does not have a basis for a complaint until the court accepts her complaint and helps her.
That court can’t help her. She needs to authenticate it on her own.
She’s trapped in a circular argument that she can’t get out of. I need to have a trial in order to have a case worthy of going to trial. The discovery process does not exist in order to create a cause of action.
This is the analogy: I see you are an accountant. I think you defrauded me. I have absolutely no proof of this. But I suspect that if I could get access to your bank account and file, I would have evidence.
Should I be able to go to court and demand access to your bank account based on a suspiscion that funds of mine are in it?
The other problem Orly is having is that she seems to believe that she is a criminal prosecutor, not a plaintiff’s attorney.