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Short answer is that yes, a subpoena could be issued. In fact, Berg attaches a subpoena issued to the State Dept. and to the Kapi’olani Hospital. Both, however, were rejected by the entities. (You can see these at the end of the document as Exs. 6 and 7.)

The Kapi’olani Hospital rejected it, citing (among other things), HIPAA privacy requirements.

The Dept of State rejected it because (among other things), (a) Berg failed to follow the statutory procedures required to obtain the information; and (b) Privacy Act (5 U.S.C. § 552a) prevents disclosure.

Now, one might think that there are exceptions in both rules that could apply - i.e., that a court could order disclosure, say, under seal. On the other hand, there may not be such exceptions applicable here. Have to ask a litigator about that, as I just don’t know. (I’m not a litigator, but I watch them on TV and in movies ::grinning::).

I think that it may be that Berg first — well, first, he has to demonstrate that he has standing and that he has filed a claim upon which relief can be granted. That is the purpose of his opposition papers as I read them.

I he can get past that, he has to produce evidence (which he has not yet done, in the legal sense), to raise the factual issue regarding Obama’s citizenship. Then, Obama will have to present evidence to refut (or rebut?) that evidence. At this time, Obama likely will ask Hawaii for the documents and/or testimony to prove that he was born there (or will need to explain their absence through evidence).

Least that’s how I understand the process from reading a bunch of legal blogs, etc etc.