Legal Case Summary

here the case of Chevron versus Paige. Mr. Terrell whenever you're ready will hear from me. May it please the court. My name is James Terrell. I am a member of the firm of Pat Boggs. And I represent today the appellance the Ecuadorian plaintiffs. Before the court today are two consolidated appeals. The first is an appeal from a subpoena directing an attorney to produce documents and fire find in a wholesale waiver of privilege. That is the first one. This would be the related to the Rico proceeding that just concluded in New York. Correct Your Honor and that's docket 1382. So in that case before we would look at the merits if we did we would need to ascertain our jurisdiction. Whether that we we have jurisdiction here the appeal. And in this case is I understand at your your clients the pages are non parties to the underlying out of circuit proceeding in New York. Which would make this an ancillary proceeding regarding the granting of discovery. I was under the impression perhaps wrongly that the general rule is that there would not be jurisdiction. The Pellet jurisdiction. For an appeal by the non party to be heard until the non party is subject to a. A contemporary requirement for having dissipated discovery order. So tell us why we have jurisdiction in this first case. Your Honor let me respond with three points. First I represent the Ecuadorian plaintiffs. Okay I do not represent the individuals. Mr. and Mrs. Page. But that's just by way of clarification. Let me ask you on that and. Was the subpoena issued to you. The subpoena was issued to the pages my clients appeared as interested parties in the proceeding. I understand but the pages are the persons agreed right they they received the subpoenas and as the judge AG pointed out. This is an ancillary proceeding with respect to the subpoena right here on the board and a subpoena under rule 45

. The parties agreed are the parties that own the privilege. The parties that own the privilege are the pages clients. Those are the people I am representing here. You people you own the you represent the people that have the attorney client privilege. Right. What about the work product privilege. We believe we have the work product privilege as well. Okay. You're claiming both privileges. And you're bringing the appeal the first appeal which it relates to the proceeding in New York. That's correct you're on there and if I can go back to the veggies question. The thing that's not right about what your honor said is that there were two separate proceedings in New York. The subpoena issued out of a proceeding in New York that is now dead. Why? Judge. Right. We're working on a zero six nine one case. That's what it was captioned as and obviously you issue a subpoena in connection with them underlying proceeding. Correct. You're on there. That was issued in the case of O six nine one in New York. And at the time O six nine one that the subpoena was issued judge Kaplan on April the 13th 2011 severed the cases. I understand. The docket number was never changed on that subpoena but no subpoena could have issued at that time because judge Kaplan had issued a stay order. Well, it's a poll later to do but it's still issued in that case. Whatever case was O six nine one this subpoena is attached to. And I don't know how you can get by that because that's the power invoked under the rule. Rule requires you to get a subpoena and blank to issue the names of the parties. The case number and where it's pending. Your honor at the time the subpoena issued it should not have borne that docket number. Well, it did. It was a subpoena that at the time it was at the time it was issued in the so called the Claretary Judgment Count nine docket. That was the only docket that was open that would have supported issuance of a subpoena in another district

. That docket in which that subpoena was ordered. Alt was the preliminary injunction case which the second circuit reversed in its entirety and ordered dismissed. Well, let me just stick for a moment with my assumption that it's in the recode case for an ask you a little along the same lines. Judge Kaplan did issue a final judgment I gather a couple of weeks ago. He did. You're going to like the opinion. Yes. How are we to take that? It does not affect the decision before your honor today. It does not cure the failures committed respective respectfully by magistrate judge day or by judge Titus. You can't go back and say the failure of the court when I get to the merits arguments to make the findings necessary to determine waiver wholesale waiver of attorney client privilege. I was for some time. My question was focus a little more on the moodness issue. The recode the Salazar case which is the other breakout case count nine is dead. It's over. It's over. The recode case was resolved by a final judgment on March four. Correct. And the question is, is this a mean of mood if it's attached to that case? The honor, let's assume for the moment it was mood. I don't think it is. Chevron certainly does not believe it is. Well, they'll get up here and say it's subject to appeal and there may be open and until it's final in its final sense. But it doesn't matter because the exact same request was made in the 1782 proceeding and the 1782 proceeding is not mood. It is in support of a foreign proceeding currently pending before the hagg a bid arbitration. And that's the case that's consolidated with the case that's consolidated. It is the same issue you say exactly the same issue you're on and that's why I don't want to not get bogged down. But you say it's a structural jurisdictional issue in the first case. Right. Really don't make any difference. Correct. Well, why don't you get merits and you don't want to lose all your time on these procedural niceties? No, you're on it. Let me turn. All this be stayed pending the resolution of the appeal in New York

. I don't think Chevron will want it stayed because it wants the documents in support of the international. I mean, but you could say you want to stay. No, you're on the correct disposition here is reversal and remand. It is not it should not. Where are the documents now? The documents are in the hands of Chevron though they were ordered by just Titus to be returned. They're not returned over completely under compulsion. So they have what you or clients say are the privileged documents. They have access of the attorney client privilege materials during all this time. Correct. Do they have all the documents? Yes, you're on it. What about the email? I believe they have everything here on it. So what is the cat out of the bag? I mean, what would if you win what they had they have to turn it back over and purge themselves. That's all. And that's what the Supreme Court says, which is to do the best you can to cure the fact that it shouldn't have been turned over in the first place. But let me hustle to the Baron before we leave the procedural nice. Yes, back to the jurisdictional question on the recive case. Tell us again how you would say a case like Mike's train house doesn't settle the jurisdictional question here. What we believe with respect to the jurisdictional question here on it is that it falls within the purview as an order to lawyers under this court's decision in Potomac electric power versus lev it. That it is a subpoena served on a non party in this case a lawyer who it doesn't who is cannot be expected to stand up and be held in contempt. And that the problem and doctor. I'm sorry. That's that the problem and doctor. Yes, you're claiming jurisdiction on the problem and doctor. We are on the other hand, which is 1918 or something by the Supreme Court United States almost as old as the court has your honor, but yes. And it's subsequent project. But some of these some of these people say Mohawk undercut it. Yes, runner. The the and I don't I want to stick with procedure because the court wants me to but we've got to consider the same issues under 1782. So it doesn't matter. It just doesn't matter. Okay, if the decision you we have to reach the merits at least under one of the petitions and it's the same issue. The additional issue wouldn't necessarily be the same under the 1782

. No, the the finality under the 1782 is undisputed throughout the circuits. It is it a proceeding the only purpose of which is discovery and once discovery then takes place it is appealable. I've handled I've been privileged for the Ecuadorians to handle this in the in multiple circuits and that's been the uniform rule. The issue that your honor raises is appropriate with respect to if it stood alone the subpoena directed to attorneys. We believe that there is finality. But in either event the three merits arguments I would like to make probably need to be considered. With your permission I'll turn to the merits arguments number one. The district court aired and concluded the forfeiture of the privilege rule of privilege ruling made by Judge Kaplan in the southern district extended to Mr. Page. Judge Day himself concluded that there was no voluntary waiver in the southern district that it was in post that the waiver of privilege of 17 years of attorney client documents was done as a forfeiture. It was done as a punishment because of Mr. Donziger's failure to submit a privilege at exactly the same time he moved to quash the subpoena. And the court then went on to say that it nonetheless was going to extend that waiver that forfeiture by Mr. Donziger to an independent set of to a group of lawyers who did a acknowledge worked with Mr. Donziger. That's not what the law is and with respect the court made a finding there not the Maryland court but the New York court that Mr. Donziger on that instance made a deliberate tactical decision for delay for his purposes and that that's why the way we came about. The court decided in New York that there was a decision as your owner described. But the forfeiture was still not voluntary. He didn't choose to waive the document. The court concluded he made that tactical decision in the case whether rightly or wrongly. The second circuit severely questioned this and said Judge Kaplan should go back with the draconian sanctions like that if the emergent need of two people being accused of criminal violations in Ecuador went away and it did go away. And Judge Kaplan issued an opinion to the second circuit and said I'm willing to reconsider it. But then when it went back to Judge Kaplan, he said no, he would not reconsider. Does the lawyer have a right to look waive attorney client privilege of the privilege of his client? Can a lawyer waive it and allow your waive the attorney client privilege with the consent of the client? Well, but they can allow your waive it. I think it's possible that he could waive it. Yes, your honor. Without the consent of his client. I believe that that's probably possible, but that's not what happened here. They were ordered to produce and that's what Judge Day in his own opinion said they were ordered to produce. And we cited. So you're saying they were produced under compulsion compulsion and that doesn't constitute a way

. Correct. Watching my time. My second merits argument, Your Honor, is that notwithstanding the issue of whether there is a forfeiture, the analysis performed by the court on crime fraud was completely wrong. In the first instance, there's two prox. One, is there a primafatchy showing of crime fraud? If you look at Judge Day's opinion, and of course the opinion by Judge Titus was one page of firmance, essentially. Judge Day's opinion relied virtually entirely on Judge Francis' opinion, which relied on Judge Kaplan's opinion, which opinion was completely reversed by the second serve. What did the DC circuit do with it? The DC circuit in light of that, Your Honor is correct. I can just turn to that. You were in that case too, weren't you? I was. And the DC circuit on the basis of that said it had to be reversed and remanded. The exact language from the DC circuit said, given that the district court relied on the decision of the New York District Court, and that the New York District Court's decision was subsequently reversed by the second circuit, we must vacate the DC district court's decision and remand, which is precisely the relief we are asking. He did it all, weren't you? One page, didn't he? They brought a one page opinion. It was a short opinion. Yes, I'm not sure how long it was. Judge Kavanaugh. Yes. unanimous opinion. Yes. What happened after that? It went back to the court. I did not handle it below, and I'm not sure if it was resolved by agreement. Is there any way to distinguish that case from this one? I don't believe so, Your Honor. And if I can go to the second prong, because the third circuit where I argue dealt with this, and I suggest the second prong that this court should follow, the third circuit's lead on that. The third circuit said, you know, two things have to be done here. You got to look at the documents. Judge Day did not look at the documents. He basically ruled on mass that there was a waiver of privilege. The third circuit, in addressing that same question, said, we therefore will vacate the district court's determination with respect to the crime fraud exception to the attorney client privilege, and will remand the case to the district court so that it can conduct an in-camera review of the relevant documents and determine whether the crime fraud exception to the attorney client privilege is applicable to any of the documents and if so, which ones. And you know what happened? This is not a case where anything's been hidden. They have the documents already. This is a case in which Chevron is essentially looking to score another win, to basically say, you know this happened in the dealing of Maryland and the fourth circuit approved it. Which is why we've been forced to fight in every circuit and every circuit we've fought in has reversed this when it has happened on this basis. At least circuits reversed it

. The third circuit, I think twice, the DC circuit, and I don't remember, I wasn't in the fifth circuit case, so I'm not entirely sure what happened. But we were in 17 district courts in your honor and all of this. So it's been quite a round. I've made the point and you bear with me. I have something you said earlier. I'm curious about the rights involved with respect to the work product privilege. Yes. And this is hypothetical. If an attorney engages in fraud on the court and does memoranda engages in correspondence among other attorneys, and they're carrying out the scheme to defraud the court, is that a privilege that belongs to the client or in that case can be attorney-wise? Not sure of the answer, but I think the attorney can waive it, but not without the court looking at the document, including the document in question, was in further and so defraud. It goes to my very early question about the role. I'm very aware, of course, that an attorney client privilege belongs to the client. I mean, it's a matter of fact, attorneys don't have a lot of say about it. There's an imputed knowledge from the attorney to the client, but with respect to the work product privilege, it seems to me what Chevron, and at least with Judge Kaplan, has concluded, is that this was a comprehensive effort that was being designed and orchestrated by these attorneys to bypass legitimacy and equity. And virtually all of their efforts should be exposed under this exception of participating in fraud. Is there an easy answer to that? I don't, we'll see what the second circuit says in about a year, Your Honor, but no, I don't think there isn't easy answer to that. That's clearly what Judge Kaplan has concluded, but if I may, Chevron asked for this case, which started in New York to go to Ecuador. Three Ecuadorian courts concluded there was no fraud. Now, Judge Kaplan has said that the judge who made the initial decision was bought. But then under Ecuadorian procedure, it went up to an intermediate appellate court in Ecuador on the DeNovo review. And they concluded that there was no fraud. Then it went up to the Ecuadorian Supreme Court, and it was affirmed. You know how Judge Kaplan dealt with that? Judge Kaplan indicted the entire Ecuadorian judiciary. And he said, you can't believe or go with anything that they said. Even though that was Chevron. There's a couple reasons why Judge Kaplan said it, and pretty good reasons. I mean, first of all, Ecuador is going to get billions at hours out of this, all of Ecuador. That's number one, and number two, there is some evidence. That's something very, very wrong took place. I mean, you see the video, and you see Cabrera sitting in the same room with the attorneys working on a strategy. And then you see this memo, these memos that were done by the pages, that were never turned over to the court. And the language appearing in the court's opinions. There's stuff that maybe your clients are fine

. But at this point, it doesn't look very good. And so Judge Day was acting on that more comprehensive notion than saying, oh, we have a particularized document that says there's a fraud. Well, he's concluding that the effort was a fraudulent effort to bribe judges. But he based that, not on what Judge Kaplan found a week ago. This goes back two years. He based it on an opinion, another 171 page opinion by Judge Kaplan, concluding mostly the second thing, completely vacated by the second circuit. And so all we're saying is, as a matter of procedure here, these decisions in this court were written. The other circuits have concluded that the same thing by their district courts were wrong. You know what's going to happen if you remand this? Chevron has the specific documents. Let them come forward as was done when the remand occurred in the third circuit and say, Mr. Terrell, we only care about two of the documents. We may waive the privilege. And the whole issue will go away. We waived it in the third circuit. Several hundred, I'm not sure exactly. Is that a room poll? No, no, no. It's much more. That's all. That's all. I counsel can tell, but it's not a lot of documents. Okay. Not in any way. Are they satisfied you produced everything? I think that they've made a further motion with respect to that. That it's still that they've tried to make in this document. I think perhaps to suggest that by creating new activity in the case, there's no appellate jurisdiction. But in any event, that still sits and is not gone anywhere in the court. Okay. We'll have you back up. Thank you very much, Chevron. Appreciate it. I mean, you're getting used to this, aren't you? Your Honor, I think I'm ready to retire from this. I'm an old defense lawyer who has had his very first crack at being involved on the plaintiff's side of the case

. Because a corporate client asked me to do so. And as I reflect on it, I think I better stay on the defense side of the case. Thank you. All right, Mr. Craig. Good morning, may it please the court. My name is Tom Dupree. I'm here this morning on behalf of Chevron. So, first off, whether you agree or disagree with Mr. Tyrell, with regard to the jurisdictional issue in the RICO case. I disagree with him, Judge A. G. You disagree? That is correct. Our position is that there is no�'s knowledge or restriction over the RICO appeal. We think there is as to the 1782 appeal, but as to the RICO appeal, no. And here's why Mr. Tyrell is attempting to fit this case within the narrow confines of the Pearlman doctrine. And we ask you for supplemental briefs on that, on this jurisdictional point. I don't think you even mentioned Pearlman in your supplemental brief. We did not mention Pearlman in our supplemental brief, Your Honor, but that's sort of what we were looking for. Well, out of the fit or not fit under Pearlman. Well, keep in mind you didn't even mention. The plaintiffs had never identified Pearlman as a basis for jurisdiction prior to the law, or the clients appeal this kind of thing, that Pearlman just jumps out. Well, let me, let me, and again, Your Honor, let me just responding to Judge A. G's question as to Pearlman. The reason why we don't think Pearlman applies several reasons. Number one is that Pearlman applies when you have an instance of a disinterested third party witness. And Pearlman, of course, the disinterested third party witness was a court clerk, who obviously had no dog in the fight and was willing simply to submit and turn over the documents. That's why the Supreme Court permitted an interlocatory appeal. Here, Mr. Page in sharp contrast is anything but disinterested. In fact, he has been fighting us tooth and nail in the district court

. He's fighting us here on appeal. He is far removed from the disinterested court clerk. That was an issue in Pearlman. So for that reason, we don't think there's a pellet jurisdiction. The second circuit in another appeal arising from one of Mr. Donzegger's associates, who was subject to a third party discovery order filed an appeal. And the second circuit dismissed that case, finding that Pearlman did not apply and that there's no pellet jurisdiction. Mr. Carrell says he's not here on behalf of the case. He's here on behalf of the Ecuadorian plaintiffs who are, or a bank in the Rico case of New York. Is that right? That's right. That is correct. Although I don't represent the clients. He's representing the logo Agri-O plaintiffs today. He's not representing Mr. Page today, although he's presenting argument on his behalf. But he's representing the clients. There's the holders of the privilege. Because I always thought that's the intern. In theory, that's the intern. The interned client privilege is owned by the client. I always thought. I practice law for a long time. And I understood always that the interned client privilege long to the client. Not to the lawyer. Now, the work product relates to different bird. It belongs a lot to the lawyer. But I thought that he was up here arguing for the clients. I protect the interned client privilege from against things that you already have. Even it's a odd situation. That you get it from the, from a failure of the lawyer to file a piece of paper. In a courthouse, you get everything of the privilege stuff that belongs to the client

. The impact of this on criminal proceedings is scary. Well, Judge King, I respectfully disagree with your honours' characterization. This kind of eroding that you seek is absolutely terrifying to the fundamental concepts of litigation as far as I'm concerned, particularly criminal litigation. I mean, I've had criminal clients that have talked to who've incorporated themselves. And under your principles, if I don't file a privilege long timely, the other side or the government or the prosecutors get access to my notes. Judge King, I put my client over. And I've got to get on the witness test by against him. Yeah, you can fast. Well, I respectfully disagree with your honours' characterization or number of fronts. One is, I hope the court will keep in mind that the question as to whether this was an appropriate privilege waiver was appealed to the second circuit, which unanimously affirmed Judge Kaplan's ruling. And in fact, concluded the opinion by singling out Judge Kaplan for praise in his handling of this matter. So your honours' question about how the consequences are draconian was fully vetted before the second circuit, which affirmed Judge Kaplan's privilege. I should say there's a difference between criminal proceedings and civil proceedings. That was going to be my second point and my third point. I'm going to turn to my private privilege and work product privilege, which isn't, aren't most of the documents work product in this case? Yes, I think that's fair to say. You've never identified which or which. All you have talked about is privilege. You've used the term privilege, privilege, privilege, privileges, privileges, not which whether it's attorney client or work product. Did you just use them interchangeably? Well, that's because Judge Kaplan found that any privilege or work product protection was waived as a result of Mr. Don Singer's obstructionist. The attorney client privilege was waived by the failure of the lawyer to file a log in a timely manner. Under a local rule, gave up the privilege of all of these clients as an attorney client privilege, which belongs to the client. Under the general concepts of privilege law. Judge King, that ruling was affirmed by the second circuit, but the other point I would make is it's more than simply a failure to file a timely privilege log as though something that could happen out of inadvertence. This was a calculated intentional obstructionist effort to delay into stonewall and if the lawyer does that, maybe ought to be disbarred or something. You can take sanctions against lawyers, but but the still the attorney client privilege. Things that clients say lawyers are protected, advice that lawyers give clients are protected and it's sacri-saint in a lot of jurisdictions. It's a felony for a lawyer to give it up, but I think the law is fairly well settled that a lawyer can waive the attorney client privilege, especially when you have a situation here where the lawyer was not making a good faith. Yes, I would point out that Judge Kaplan, of course, specifically found that the clients had ratified their attorney's action. So I would question your honours. The second circuit conclude that what are the second circuit include on the wafer? The second circuit affirmed the waver and they said that Judge Kaplan acted appropriately in deeming Mr. Donzinger's calculated tactical obstructionist effort as a bad faith effort to delay the attorney's action. They are efforts at discovery and that the sanction was fully appropriate. Well, that's not what Judge Kaplan also says and his opinions that the second circuit reversed. Well, I think your honours, Judge Kaplan, I was- We're talking about two different opinions, Your Honor. Oh, we are. Oh, good. Well, Mr. Terrell says it's the same case as the was up in the DC circuit and that in that case, Judge Kaplan also says that the second circuit reversed. The ruling that was relied upon. Well, that's true as far as it goes. Here's the issue. Did you take that case to the spring court was certain tonight or was it all doing jiptation for in bank? We didn't- That's the end of that. That's the end of that. But that case went back to the district court but let me just quickly- You can complete one. If we were ruling your favor, it sounds to me like he's right, would be creating a split in the circuit. That's not right. Okay. He's wrong when he says the same case. Well, it's the same case. There are different rulings flowing out of the same dispute. These are the third circuits agreed with him too. Well, let me first- Let me address the DC circuit. On the DC circuit side, Judge Kaplanade didn't opine on the second circuit's waiver ruling. That- And upon on it, he just summarily said it was reversed. And there is a different second circuit ruling that provided the basis for Judge Kaplan's opinion. That was the Nuranjo case which concerned a procedural availability of declaratory relief under the New York Judgment Recognition Act. That is something completely separate from the second circuit ruling we're talking about today, which is their affirmance of Judge Kaplanade on the waiver finding. If I could turn to one- Why is that the law of the case? In other words, this is a subpoena issued out of the one where they found the waiver. Isn't that the law of the case and ancillary jurisdiction we just have to were bound by? I- I think that's right to the extent that the second circuit has said that this is a proper sanction in this context. And that's my point about emphasizing the fact that the second circuit had affirmed this. It's the same case. It's not a lateral case. We don't have any choice to reverse the second circuit or disagree with the second circuit on this case

. They are efforts at discovery and that the sanction was fully appropriate. Well, that's not what Judge Kaplan also says and his opinions that the second circuit reversed. Well, I think your honours, Judge Kaplan, I was- We're talking about two different opinions, Your Honor. Oh, we are. Oh, good. Well, Mr. Terrell says it's the same case as the was up in the DC circuit and that in that case, Judge Kaplan also says that the second circuit reversed. The ruling that was relied upon. Well, that's true as far as it goes. Here's the issue. Did you take that case to the spring court was certain tonight or was it all doing jiptation for in bank? We didn't- That's the end of that. That's the end of that. But that case went back to the district court but let me just quickly- You can complete one. If we were ruling your favor, it sounds to me like he's right, would be creating a split in the circuit. That's not right. Okay. He's wrong when he says the same case. Well, it's the same case. There are different rulings flowing out of the same dispute. These are the third circuits agreed with him too. Well, let me first- Let me address the DC circuit. On the DC circuit side, Judge Kaplanade didn't opine on the second circuit's waiver ruling. That- And upon on it, he just summarily said it was reversed. And there is a different second circuit ruling that provided the basis for Judge Kaplan's opinion. That was the Nuranjo case which concerned a procedural availability of declaratory relief under the New York Judgment Recognition Act. That is something completely separate from the second circuit ruling we're talking about today, which is their affirmance of Judge Kaplanade on the waiver finding. If I could turn to one- Why is that the law of the case? In other words, this is a subpoena issued out of the one where they found the waiver. Isn't that the law of the case and ancillary jurisdiction we just have to were bound by? I- I think that's right to the extent that the second circuit has said that this is a proper sanction in this context. And that's my point about emphasizing the fact that the second circuit had affirmed this. It's the same case. It's not a lateral case. We don't have any choice to reverse the second circuit or disagree with the second circuit on this case. I- I agree, Judge Neymar. And let me make one other point is that Mr. Paige conceded below in this case in the district court that the documents at issue, the ones that were fighting about today, should have been produced in the southern district of New York, pursuant to Judge Kaplan's discovery orders and pursuant to Judge Kaplan's waiver orders. So the documents we're fighting about today, they have conceded should have been produced pursuant to a federal court order. That's undisputed on this record. What they are doing, your honors, is they are playing a shell game. When we went to Mr. Don Zenger and said, produce your documents. He said, well, I've given you the documents I have and we said, well, that's not good enough. You also are required under rule 45 and Judge Kaplan's express order to produce documents within your control and that necessarily encompasses documents possessed by your associates, your law interns and the like. That's what Judge Kaplan held straight forward black letter law. That encompasses Mr. Paige. Mr. Paige- Let me ask you about the not the second circuit opinion that was the subject of the DC circuit opinion, the specific discovery issue that's related to the waiver. When that went up to the second circuit, were any of the alternative grounds that the magistrate and the district court reached in this case dealing with from fraud exception. The disclosure of third parties and the disclosure of three equity were in court. Were any of those part of that case? No, Your Honor. I think it's fair to say that the second circuit is ruling focused on the privilege waiver question. Judge Day's additional reasons for granting our discovery requests, namely the crime fraud exception and the disclosure to third parties are independent sufficient grounds for affirming the judgment below. The privilege waiver question, if this court affirms on privilege waiver, that's the end. In other words, affirming the privilege waiver, which we think is very straightforward. The privilege waiver we're talking about. Both. What privileges? We're talking about Judge Kaplan's finding that both attorney client and work product had been waived by Don's egg is misconduct. And so all privileges claimed were way. Yes. And you say that ruling was firm on the second circuit. Yes. And how what what's the explanation for the DC circuit relying on the Salazar appeal? The DC circuit in the Weinberg case. What happened in that case was the magistrate judge in DC had conducted what, at least in the judgment of the DC circuit, was not a sufficiently independent appeal. And the termination as to crime fraud

. I- I agree, Judge Neymar. And let me make one other point is that Mr. Paige conceded below in this case in the district court that the documents at issue, the ones that were fighting about today, should have been produced in the southern district of New York, pursuant to Judge Kaplan's discovery orders and pursuant to Judge Kaplan's waiver orders. So the documents we're fighting about today, they have conceded should have been produced pursuant to a federal court order. That's undisputed on this record. What they are doing, your honors, is they are playing a shell game. When we went to Mr. Don Zenger and said, produce your documents. He said, well, I've given you the documents I have and we said, well, that's not good enough. You also are required under rule 45 and Judge Kaplan's express order to produce documents within your control and that necessarily encompasses documents possessed by your associates, your law interns and the like. That's what Judge Kaplan held straight forward black letter law. That encompasses Mr. Paige. Mr. Paige- Let me ask you about the not the second circuit opinion that was the subject of the DC circuit opinion, the specific discovery issue that's related to the waiver. When that went up to the second circuit, were any of the alternative grounds that the magistrate and the district court reached in this case dealing with from fraud exception. The disclosure of third parties and the disclosure of three equity were in court. Were any of those part of that case? No, Your Honor. I think it's fair to say that the second circuit is ruling focused on the privilege waiver question. Judge Day's additional reasons for granting our discovery requests, namely the crime fraud exception and the disclosure to third parties are independent sufficient grounds for affirming the judgment below. The privilege waiver question, if this court affirms on privilege waiver, that's the end. In other words, affirming the privilege waiver, which we think is very straightforward. The privilege waiver we're talking about. Both. What privileges? We're talking about Judge Kaplan's finding that both attorney client and work product had been waived by Don's egg is misconduct. And so all privileges claimed were way. Yes. And you say that ruling was firm on the second circuit. Yes. And how what what's the explanation for the DC circuit relying on the Salazar appeal? The DC circuit in the Weinberg case. What happened in that case was the magistrate judge in DC had conducted what, at least in the judgment of the DC circuit, was not a sufficiently independent appeal. And the termination as to crime fraud. In other words, again, in the judgment of the DC circuit, the magistrate judge had simply said, I'm going to look at what Judge Francis, which was the magistrate judge in New York found. And I'm not going to conduct an independent inquiry of the record before us. That is the polar opposite of this case. And judge King, that gets to your question as to why the Weinberg decision has little to say. What distinguishes this case is that in this case judge day did conduct an independent analysis as the court knows. Did he look at the documents? Yeah, absolutely. Well, he didn't look at the documents that were fighting about, but he looked at the ones you're fighting about. That's what we were told this moment ago. That's what I said. He did not documents. Did he, and he didn't look at him individually and tried to figure out is this protected or not protected by first of all attorney, the crime privilege and second of all work product privilege. He did not do that. He did not do a document by document review of the documents were fighting about. He was not required to. This court has said that courts, district courts have wide discretion to decide whether or not to conduct that sort of review. And we think Judge Day acted well within his broad discretion and declining to do the exhaustive document by document, March that the plaintiffs have demanded. But what Judge Day did do and again this goes to why it's different from the DC Circuit case is that Judge Day did conduct his own independent evaluation of the record evidence in his two opinions in this case. He talked at length about the evidence of fraud, specifically the evidence that Mr. Page played a key role in ghost writing the fraudulent and corrupt Ecuadorian judgment. Mr. Page wrote the so called fusion memo, which was a legal document that was incorporated essentially word for word into the fraudulent Ecuadorian judgment. Judge Kaplan's 500 page opinion explains this in painstaking exhaustive detail. That's right, Judge King. In exhaustive detail how this fraud was perpetrated. Judge Neymar, you put your finger on it. This was a wide ranging sweeping fraud that involved the intimidation of judges. The fabrication of expert reports the ghost writing of judicial opinions bribery corruption. It ran the gamut. But in the DC Circuit District Court opinion that went up to the DC Court of Appeals. The only issue there was the crime fraud exception. Is that right? Yes. No other no other waiver issues were involved there that are also that are involved in this case

. In other words, again, in the judgment of the DC circuit, the magistrate judge had simply said, I'm going to look at what Judge Francis, which was the magistrate judge in New York found. And I'm not going to conduct an independent inquiry of the record before us. That is the polar opposite of this case. And judge King, that gets to your question as to why the Weinberg decision has little to say. What distinguishes this case is that in this case judge day did conduct an independent analysis as the court knows. Did he look at the documents? Yeah, absolutely. Well, he didn't look at the documents that were fighting about, but he looked at the ones you're fighting about. That's what we were told this moment ago. That's what I said. He did not documents. Did he, and he didn't look at him individually and tried to figure out is this protected or not protected by first of all attorney, the crime privilege and second of all work product privilege. He did not do that. He did not do a document by document review of the documents were fighting about. He was not required to. This court has said that courts, district courts have wide discretion to decide whether or not to conduct that sort of review. And we think Judge Day acted well within his broad discretion and declining to do the exhaustive document by document, March that the plaintiffs have demanded. But what Judge Day did do and again this goes to why it's different from the DC Circuit case is that Judge Day did conduct his own independent evaluation of the record evidence in his two opinions in this case. He talked at length about the evidence of fraud, specifically the evidence that Mr. Page played a key role in ghost writing the fraudulent and corrupt Ecuadorian judgment. Mr. Page wrote the so called fusion memo, which was a legal document that was incorporated essentially word for word into the fraudulent Ecuadorian judgment. Judge Kaplan's 500 page opinion explains this in painstaking exhaustive detail. That's right, Judge King. In exhaustive detail how this fraud was perpetrated. Judge Neymar, you put your finger on it. This was a wide ranging sweeping fraud that involved the intimidation of judges. The fabrication of expert reports the ghost writing of judicial opinions bribery corruption. It ran the gamut. But in the DC Circuit District Court opinion that went up to the DC Court of Appeals. The only issue there was the crime fraud exception. Is that right? Yes. No other no other waiver issues were involved there that are also that are involved in this case. The DC Circuit. Why do they say attorney client and work fraud up? The DC Circuit focused on the crime fraud issue. And again, distinguishable on several grounds. One is that in our case the judge did conduct an independent examination. That was the law. The attorney of the crime fraud, wasn't it? Wouldn't that the alternative he talks about here? Judge Dayer honor? No, no, the DC Circuit. The district court added in the alternative that even the Wilson open one, the evidence Marshall, more than sufficiently made out of Prima, Fasica case of fraud on Ecuadorian court. That was the alternative ruling and the judge did court. The panel reversed that said they've not cleared all that they that the DC Court applied the crime fraud test set forth in this court's cases. And that is the difference between that case and this case is that that was the alternative ruling that they use that was an alternative ruling. I think that's the DC court rejected. I don't understand your answer then to my question and the DC case were the other waiver issues the derivative waiver. The derivative waiver from Mr. Donziger occasioned by the filing of the late disclosure law, the third party disclosure were any of those issues were any of those issues in the DC case. No, it was crime fraud. Okay. So let me make one other point as to why the DC Circuit case is distinguishable at the time the DC Circuit case came down the judge Francis opinion and that's the one that the DC Circuit said the magistrate judge had improperly placed too heavy reliance on had arguably been called into question by the intervening second circuit decision again the Nuranjo decision not the waiver firm as we've been talking about. Since that was holding the second circuit in that case the second circuit basically said that the relief that we were seeking wasn't available they said it was a procedural question about the sort of relief that you could obtain under New York's judgment recognition act so again it didn't get into the fraud and in fact the junction request. So it basically was it was accountants declaratory judgment request that was the so-called count nine issue that went up to the second circuit the second circuit sent the case back but and this is the key point at the end of the decision they said we're not opining on any of the crime fraud or any of those issues and so I don't think that. Some about these issues about the waiver ought to be reevaluated or something. Well again that's the waiver decision judge came that wasn't the declaratory judgment ruling what they said in the waiver ruling is they said that in the event that Ecuador or the others able to buy more time in other words the reason why we are hustling in the Southern District of New York is because we had imminent court deadlines including criminal prosecutions and the like and so we needed these documents in our hurry the second circuit basically said if that situation changes and it is namely if Ecuador and the plaintiffs were able to obtain extensions in those cases so there wasn't the time urgency that maybe Judge Kaplan would go back and look at some of these issues of course they didn't do that they never came back and so that's all it was the second circuit most certainly did not call into question judge Kaplan's judgment or suggest that he should have done anything differently. I think what this case ultimately boils down to as far as the waiver issue goes again first principle is that they have conceded these documents should have been produced already in the Southern District of New York what they are basically arguing today and I don't think it's a tenable position is that the fact that Mr. Donzanger who is effectively the partner in this structure with Mr. Page being his law intern or his associate that Mr. Donzanger is not required to turn over documents or that they may be withheld and that they may be with the if they happen to be in the possession of the associate or the law intern that's obviously not the law that's a recipe for shell games it's a recipe for misdirection if a partner is under an order to produce documents that partner cannot walk down the hall and give to his associate is interned the file and say I don't have to produce it these documents should have been produced they concede they should already have been turned over pursuant to Kaplan's orders so we are fighting over documents that they agree should be in the state of the state of the state. They should already have been turned over to us let me also quickly in my remaining time speak we are arguing about documents that you already have. We have most of them judge King Mr. Tarell suggested we don't have all of them we don't have all of them but I understood you did have all of them it's a question whether you keep them or give them back or something try to purge but anyway. We have documents that Mr. Pages produced Mr. Tarell said he thought was a few hundred pages that's wrong it's I think north of 9000 pages but the other point where Mr. Tarell is incorrect is where he said 9000 9000 yes more than the other point where Mr

. The DC Circuit. Why do they say attorney client and work fraud up? The DC Circuit focused on the crime fraud issue. And again, distinguishable on several grounds. One is that in our case the judge did conduct an independent examination. That was the law. The attorney of the crime fraud, wasn't it? Wouldn't that the alternative he talks about here? Judge Dayer honor? No, no, the DC Circuit. The district court added in the alternative that even the Wilson open one, the evidence Marshall, more than sufficiently made out of Prima, Fasica case of fraud on Ecuadorian court. That was the alternative ruling and the judge did court. The panel reversed that said they've not cleared all that they that the DC Court applied the crime fraud test set forth in this court's cases. And that is the difference between that case and this case is that that was the alternative ruling that they use that was an alternative ruling. I think that's the DC court rejected. I don't understand your answer then to my question and the DC case were the other waiver issues the derivative waiver. The derivative waiver from Mr. Donziger occasioned by the filing of the late disclosure law, the third party disclosure were any of those issues were any of those issues in the DC case. No, it was crime fraud. Okay. So let me make one other point as to why the DC Circuit case is distinguishable at the time the DC Circuit case came down the judge Francis opinion and that's the one that the DC Circuit said the magistrate judge had improperly placed too heavy reliance on had arguably been called into question by the intervening second circuit decision again the Nuranjo decision not the waiver firm as we've been talking about. Since that was holding the second circuit in that case the second circuit basically said that the relief that we were seeking wasn't available they said it was a procedural question about the sort of relief that you could obtain under New York's judgment recognition act so again it didn't get into the fraud and in fact the junction request. So it basically was it was accountants declaratory judgment request that was the so-called count nine issue that went up to the second circuit the second circuit sent the case back but and this is the key point at the end of the decision they said we're not opining on any of the crime fraud or any of those issues and so I don't think that. Some about these issues about the waiver ought to be reevaluated or something. Well again that's the waiver decision judge came that wasn't the declaratory judgment ruling what they said in the waiver ruling is they said that in the event that Ecuador or the others able to buy more time in other words the reason why we are hustling in the Southern District of New York is because we had imminent court deadlines including criminal prosecutions and the like and so we needed these documents in our hurry the second circuit basically said if that situation changes and it is namely if Ecuador and the plaintiffs were able to obtain extensions in those cases so there wasn't the time urgency that maybe Judge Kaplan would go back and look at some of these issues of course they didn't do that they never came back and so that's all it was the second circuit most certainly did not call into question judge Kaplan's judgment or suggest that he should have done anything differently. I think what this case ultimately boils down to as far as the waiver issue goes again first principle is that they have conceded these documents should have been produced already in the Southern District of New York what they are basically arguing today and I don't think it's a tenable position is that the fact that Mr. Donzanger who is effectively the partner in this structure with Mr. Page being his law intern or his associate that Mr. Donzanger is not required to turn over documents or that they may be withheld and that they may be with the if they happen to be in the possession of the associate or the law intern that's obviously not the law that's a recipe for shell games it's a recipe for misdirection if a partner is under an order to produce documents that partner cannot walk down the hall and give to his associate is interned the file and say I don't have to produce it these documents should have been produced they concede they should already have been turned over pursuant to Kaplan's orders so we are fighting over documents that they agree should be in the state of the state of the state. They should already have been turned over to us let me also quickly in my remaining time speak we are arguing about documents that you already have. We have most of them judge King Mr. Tarell suggested we don't have all of them we don't have all of them but I understood you did have all of them it's a question whether you keep them or give them back or something try to purge but anyway. We have documents that Mr. Pages produced Mr. Tarell said he thought was a few hundred pages that's wrong it's I think north of 9000 pages but the other point where Mr. Tarell is incorrect is where he said 9000 9000 yes more than the other point where Mr. Tarell may have misspoke is when he suggested that they had fully complied with the order that's not true in fact we have a pending contempt hearing against Mr. Page scheduled in the district of Maryland we've moved for contempt sanctions because. It's one that's which case is that in that is it's in actually both the Rico case and the 1782 case and you have hearings when you're going to appeal. I think you can as long as the district judge is not modifying the substance of the remedy he's given good was an aid of an appeal well only the 1782 order is a final judgment and so I don't think we can't be having a hearing it's a final judgment go over with. Well it's a final judgment for purposes of appeal that doesn't necessarily mean all the proceedings in the district court stop in other words if the district court orders production in certain circumstances at least in the 1782 context courts have said that can be appealed as the final order notwithstanding that there's more fighting going on over the scope of compliance really still litigate we are. Did Don's in or turn over these documents in New York. No judge in my or Don's in or did not he turn over some of the documents that we think are in Mr. Page's possession but he did not give us the documents that we saw it and that Mr. Page ultimately did turn over turned out they were in his possession all along. I think that's it's their further questions we ask that there's a red light you get a ticket going through you know. And I'll sit down at this point your honor thank you very much. Mr. Rob. Your honor there's been so many circuit court opinions in this case it's tough to keep him safe but let me try to be sure that confusion that I think that that just occurred straight out. There was a 1782 against Mr. Don's occur in New York that was the case in which he allegedly did not put in his privilege log in time and in which there was an overall forfeiture of 17 years of attorney client information that went that went up to the second circuit the second circuit ultimately stayed stated and ultimately said there's only one justification for this dracan remedy. And that is the immanence of criminal proceedings against two of chevrons lawyers and on that limited basis alone we will allow the discovery to go forward the forfeiture to go forward that was the issue. However we say to the district court if that emergency changes we suggest that the district court go back and reconsider this draconian result. Judge Kaplan to encourage that in the meantime entered another opinion before the second circuit ruled and and while we were arguing saying I'm open to that then it went back to him and he said you know what I'm not open to it I'm not going to reconsider it that forfeiture of 17 years of privilege work product and attorney clients is absolute that's where it stands now how is that relevant the first has been reviewed by the second circuit the second circuit affirmed that the second circuit is not going to be a real thing. I don't know what that was and that was the opinion I just referred to and said but go back and look at it again if the emergency goes away the emergency did not win away and he didn't do it he refused to do it did that go back up again I don't think so whatever the scope of that is and we may have to look at it closely but whatever the scope of that is it seems to me as a ancillary proceeding here in Maryland or in Maryland. We have no freedom to reverse the law of the case but that's why I'm trying to straighten out the confusion that order did not occur in the proceeding in which your ancillary proceeding name from that was the 1782. All right what happened in the in the in the Rico and that's where your question directly relevant that's why I'm trying to straighten them out in the Rico case in which in which your ancillary proceeding occurred. Okay as to the subpoena not the 1782 that was completely dismissed by the second circuit that led to the decision judge King that was the Salazar case. Yes I want you to assume that we also have the Rico case that was just cited by Judge Kaplan. Right. That this subpoena is in that case if this subpoena just take this as a hypothetical. Right. If this subpoena issued out of the Rico case. Right. What's the status of it in New York. If the subpoena issued out of the Rico case which of course we contest. I understand

. Tarell may have misspoke is when he suggested that they had fully complied with the order that's not true in fact we have a pending contempt hearing against Mr. Page scheduled in the district of Maryland we've moved for contempt sanctions because. It's one that's which case is that in that is it's in actually both the Rico case and the 1782 case and you have hearings when you're going to appeal. I think you can as long as the district judge is not modifying the substance of the remedy he's given good was an aid of an appeal well only the 1782 order is a final judgment and so I don't think we can't be having a hearing it's a final judgment go over with. Well it's a final judgment for purposes of appeal that doesn't necessarily mean all the proceedings in the district court stop in other words if the district court orders production in certain circumstances at least in the 1782 context courts have said that can be appealed as the final order notwithstanding that there's more fighting going on over the scope of compliance really still litigate we are. Did Don's in or turn over these documents in New York. No judge in my or Don's in or did not he turn over some of the documents that we think are in Mr. Page's possession but he did not give us the documents that we saw it and that Mr. Page ultimately did turn over turned out they were in his possession all along. I think that's it's their further questions we ask that there's a red light you get a ticket going through you know. And I'll sit down at this point your honor thank you very much. Mr. Rob. Your honor there's been so many circuit court opinions in this case it's tough to keep him safe but let me try to be sure that confusion that I think that that just occurred straight out. There was a 1782 against Mr. Don's occur in New York that was the case in which he allegedly did not put in his privilege log in time and in which there was an overall forfeiture of 17 years of attorney client information that went that went up to the second circuit the second circuit ultimately stayed stated and ultimately said there's only one justification for this dracan remedy. And that is the immanence of criminal proceedings against two of chevrons lawyers and on that limited basis alone we will allow the discovery to go forward the forfeiture to go forward that was the issue. However we say to the district court if that emergency changes we suggest that the district court go back and reconsider this draconian result. Judge Kaplan to encourage that in the meantime entered another opinion before the second circuit ruled and and while we were arguing saying I'm open to that then it went back to him and he said you know what I'm not open to it I'm not going to reconsider it that forfeiture of 17 years of privilege work product and attorney clients is absolute that's where it stands now how is that relevant the first has been reviewed by the second circuit the second circuit affirmed that the second circuit is not going to be a real thing. I don't know what that was and that was the opinion I just referred to and said but go back and look at it again if the emergency goes away the emergency did not win away and he didn't do it he refused to do it did that go back up again I don't think so whatever the scope of that is and we may have to look at it closely but whatever the scope of that is it seems to me as a ancillary proceeding here in Maryland or in Maryland. We have no freedom to reverse the law of the case but that's why I'm trying to straighten out the confusion that order did not occur in the proceeding in which your ancillary proceeding name from that was the 1782. All right what happened in the in the in the Rico and that's where your question directly relevant that's why I'm trying to straighten them out in the Rico case in which in which your ancillary proceeding occurred. Okay as to the subpoena not the 1782 that was completely dismissed by the second circuit that led to the decision judge King that was the Salazar case. Yes I want you to assume that we also have the Rico case that was just cited by Judge Kaplan. Right. That this subpoena is in that case if this subpoena just take this as a hypothetical. Right. If this subpoena issued out of the Rico case. Right. What's the status of it in New York. If the subpoena issued out of the Rico case which of course we contest. I understand. At that point in time there is a question of whether or not there is I guess a pellet jurisdiction over this subpoena here which goes back to the permanent issue that we discussed. All right that's one issue but if we get over that issue. Right. What do we do. I mean we're subservient this is not our case. If the Rico case if this is an adjunct to the Rico case. Right. It is a southern district in New York case that is supervised by the second circuit. And we have we supervise the rule 45. But we're stuck with the law of the case. But but you're on air if I may and you've pushed me on this but let me respectfully push back. Okay. The subpoena here that does bear the number of that the time it was both cases shared one number before it got a different number. That subpoena was issued in the case that the Salazar case the count nine case because the timing makes it absolutely clear. The timing as I understand it was the order for bifurcation was issued. Yes. The subpoena issued after that. After that but the effect of the bifurcation did not take place yet. There was no docket number. There's a later docket number given to the Salazar. The same order that Judge Kaplan ordered the bifurcation he ordered a stay of the Rico action. There could have been no discovery in the Rico action by Judge Kaplan's own order at the time the subpoena issued out. That's the law of the case too and that could be challenged. In other words the subpoena could be motion could be subject to a motion to quash based on the fact that the discovery is stayed. But that doesn't make the subpoena any less effective. You said it just couldn't have happened. Well it did happen. But here's what happened. All of this went our way. Judge Titus and Judge stayed all discovery in the case entered an administrative order closing the motion to compel. It was over. He then entered an order to return the documents to us

. At that point in time there is a question of whether or not there is I guess a pellet jurisdiction over this subpoena here which goes back to the permanent issue that we discussed. All right that's one issue but if we get over that issue. Right. What do we do. I mean we're subservient this is not our case. If the Rico case if this is an adjunct to the Rico case. Right. It is a southern district in New York case that is supervised by the second circuit. And we have we supervise the rule 45. But we're stuck with the law of the case. But but you're on air if I may and you've pushed me on this but let me respectfully push back. Okay. The subpoena here that does bear the number of that the time it was both cases shared one number before it got a different number. That subpoena was issued in the case that the Salazar case the count nine case because the timing makes it absolutely clear. The timing as I understand it was the order for bifurcation was issued. Yes. The subpoena issued after that. After that but the effect of the bifurcation did not take place yet. There was no docket number. There's a later docket number given to the Salazar. The same order that Judge Kaplan ordered the bifurcation he ordered a stay of the Rico action. There could have been no discovery in the Rico action by Judge Kaplan's own order at the time the subpoena issued out. That's the law of the case too and that could be challenged. In other words the subpoena could be motion could be subject to a motion to quash based on the fact that the discovery is stayed. But that doesn't make the subpoena any less effective. You said it just couldn't have happened. Well it did happen. But here's what happened. All of this went our way. Judge Titus and Judge stayed all discovery in the case entered an administrative order closing the motion to compel. It was over. He then entered an order to return the documents to us. And then somehow magically a year and a half later he opened it up again and entered another order that basically led to the direction that the documents be produced. Now I think there was confusion. The stay was lifted in the Rico case but they served another subpoena in the Rico case which is just dropped. I know but that means there's still two. The first one doesn't go away. It was just stay. The first one does not go away. It was just stayed but it goes away. If the predicate action on which it was to which it was ancillary is dead. Well that's the question. If it's a Rico case the question is it dead? If it is the Rico case. The Rico case was stayed. So it wasn't dead in New York and judge. But all of the things happened in the Salazar case and then Judge Titus reopened it a year and a half later after he'd already ordered the documents return. I understand but you're not following through in the Rico case. I'm assuming this is in the Rico case and in the Rico case there was a stay. Then the stay was lifted in the Rico case. Both both by Judge Titus and in New York. But we'll forget here Titus. I'll tell him about New York. Right. And what happened after that then Judge Kaplan issued his big opinion. A long time later yes. A long time later. But after the stay was lifted. Right. If the subpoena was attacked the subpoena is legit then right? If the subpoena was attached the subpoena is legitimate and there's probably no appellate jurisdiction for that here. But of course there is a pellet jurisdiction under 1782. Well I understand that's another issue. Okay. I mean it's a procedural mess. Well we can all agree on that

. And then somehow magically a year and a half later he opened it up again and entered another order that basically led to the direction that the documents be produced. Now I think there was confusion. The stay was lifted in the Rico case but they served another subpoena in the Rico case which is just dropped. I know but that means there's still two. The first one doesn't go away. It was just stay. The first one does not go away. It was just stayed but it goes away. If the predicate action on which it was to which it was ancillary is dead. Well that's the question. If it's a Rico case the question is it dead? If it is the Rico case. The Rico case was stayed. So it wasn't dead in New York and judge. But all of the things happened in the Salazar case and then Judge Titus reopened it a year and a half later after he'd already ordered the documents return. I understand but you're not following through in the Rico case. I'm assuming this is in the Rico case and in the Rico case there was a stay. Then the stay was lifted in the Rico case. Both both by Judge Titus and in New York. But we'll forget here Titus. I'll tell him about New York. Right. And what happened after that then Judge Kaplan issued his big opinion. A long time later yes. A long time later. But after the stay was lifted. Right. If the subpoena was attacked the subpoena is legit then right? If the subpoena was attached the subpoena is legitimate and there's probably no appellate jurisdiction for that here. But of course there is a pellet jurisdiction under 1782. Well I understand that's another issue. Okay. I mean it's a procedural mess. Well we can all agree on that. We'll stipulate. And you've been most generous. Your bottom line position on the on the Rico cases. I understand it is that the subpoena was totally segregated toward this count nine. Right. New York. And then the subpoena was forced to be in the enforcement of foreign money judgments actions. And that when that went away the subpoena. There was no more power left in the subpoena. And that's what you have Judge Titus behaved. He basically entered a stay. He then ordered the motion to compel administratively dismissed. We moved to have the documents returned. He ordered that they be returned. They never were returned. And he ruled on the dismissal or administrative dismissal you called it. And he administratively froze or dismissed the motion to compel. Okay. So it went away. And then in a year or so when he reopens the case. Was that done before or after the stay was lifted in the York on the other eight counts of the Rico case after the stay was lifted in New York and the other eight counts of the Rico case. Did Judge Titus have both cases in one case of 1782 and the New York case? Yeah. They were he had them at the same time. Well, how did he stay? How did he close the 1782 case? That was a final ruling in the 1782 case to produce documents and then we appealed. So there had been objections to the magistrates order directing the documents be produced in 1782. Importantly, in the 1782 case, the procedure you follow is you ask permission to serve a subpoena, then you serve the subpoena. Judge the judge day collapsed at all. You know that. Okay. So there was no time to do anything. He just triggered the order and said you've got to produce the same documents. But once he ordered that, then months later, Judge Titus affirmed that and then we appeal

. We'll stipulate. And you've been most generous. Your bottom line position on the on the Rico cases. I understand it is that the subpoena was totally segregated toward this count nine. Right. New York. And then the subpoena was forced to be in the enforcement of foreign money judgments actions. And that when that went away the subpoena. There was no more power left in the subpoena. And that's what you have Judge Titus behaved. He basically entered a stay. He then ordered the motion to compel administratively dismissed. We moved to have the documents returned. He ordered that they be returned. They never were returned. And he ruled on the dismissal or administrative dismissal you called it. And he administratively froze or dismissed the motion to compel. Okay. So it went away. And then in a year or so when he reopens the case. Was that done before or after the stay was lifted in the York on the other eight counts of the Rico case after the stay was lifted in New York and the other eight counts of the Rico case. Did Judge Titus have both cases in one case of 1782 and the New York case? Yeah. They were he had them at the same time. Well, how did he stay? How did he close the 1782 case? That was a final ruling in the 1782 case to produce documents and then we appealed. So there had been objections to the magistrates order directing the documents be produced in 1782. Importantly, in the 1782 case, the procedure you follow is you ask permission to serve a subpoena, then you serve the subpoena. Judge the judge day collapsed at all. You know that. Okay. So there was no time to do anything. He just triggered the order and said you've got to produce the same documents. But once he ordered that, then months later, Judge Titus affirmed that and then we appeal. So there's clearly a pellet jurisdiction over that. In any event, there was no document by document reviews. This makes a lot of it. Evidently lost school examination to sort out the procedures on this rule 45 exam. Yes, Shrutter, it probably would. And I hate to say, if I only had the resources, 2% of the resources my friends at Jevron did, it's much a do about nothing, not that it isn't important and that we're here. But if it's remanded and they say they look at I don't, if I'm an error in its 9,000 documents in a case that's had tens of millions of documents produced, they know their 9,000 documents. They could say, give me this one or that one. And we'd probably say we did it. Why are they pressing it? What's your thing? They want a wholesale crime fraud determination that they can offer to courts and say, look at this. Now the fourth circuit went this way. The District of Maryland went this way. I am waiting for the second circuit to take care of Judge Kaplan's order. Recent one. What would happen then? Would that be appropriate? It'd be better than losing. We do appreciate your candidacy. But we are. No, seriously. Why wouldn't that on the Rico case? Why wouldn't that be an action to undertake? Because they will take the position that they, whether true or not, that they need these documents for the bit arbitration, which is ongoing at the hage, and they need these documents for what I would call the extraordinary appeal. Wait a minute. Wait a minute. Didn't the appeal that would come up out of the New York case isn't that just related to the Rico? That the appeal only relates to Rico doesn't touch the international proceedings for which they served the 1782. Well, if they've already got the documents for the 1782 to use at the hage, what do they get? What are you saying that Chevron doesn't have that they already need as far as that? I don't think they need any of it, but my clients would, if the procedures that were followed were wrong, would want their documents back. We don't really want them to use our privileged materials at the hage, even though they didn't have it. You're on it. They came wrong. The answer is everything that our client thought it had to produce, including the privileged, everything listed on its privileged log was produced. They've now come back and said, move for contempt before Judge Day. But I don't think that affects what has already been up on appeal here. That's like collecting on a judge. We have to face these issues. I think this court has to face these issues

. Maybe. We've gone a little bit beyond the time, but I think this has helped us a lot and we'll come down and greet Council and take a short break. Thank you very much. We'll take a brief rest