in this court it involves the extent to which a district court can enter a protective order in these corpus chaney's this issue has not been covered by the court's prior cases involving protect discretion by seeking to protect information and that is a matter of public record that was disclosed in an open evidentiary hearing which was essentially the equivalent of a trial and it was protected information that did not fall within the attorney client privilege and that is in no way any confidential or protected information it it does not involve trade secrets or or the like furthermore as we have explained  a protective order can protect the information in pretrial proceedings but once you have a trial as in this case in the information it's disclosed and on the public record a court can't then say that that the public or in this case the prosecutor has no right of access to that public information it's a fact that can't be right as broadly as you stated it that is to say your argument please do so hard here is to me that if something is stated in open court the court cannot thereafter seal the record i'm not saying that the court can can never steal the record but in this case there was to begin with there was never any effort to keep confidential information when it was initially disclosed the information that we're talking about it is not agreed that there are some situations where overwriting interests might require that information be kept confidential or that records be so but there are no special interests here in this case we had an evidentiary hearing in which numerous witnesses testified including family members of kent who had also testified at the original trial experts  testified and who provided information pursuant to the federal rules this was all information that was not within the attorney client privilege and was not known as a trial counsel and it's effectively the same  conceptual difficulty i have with your argument and maybe you can help me out here the purpose of the hearing so far has been to determine whether he received ineffective counsel and if he did and he gets a new trial should he be put back in the position he would have occupied had he had effective counsel in the first place and if he had had affective counsel in the first place none of this material would have been disclosed or at least a trial court could find that to say that some of this material even though it wasn't itself covered by the privilege would not have been disclosed if he had effective counsel so why wouldn't the district court have at least the discretion to try to put back the status quo ante your honor  differently and that's what we're addressing here in other words we had people who testified in the first trial and who testified in the hearing and who may well testify in the third try another of already testified differently from the first  the hearing they may testify differently yet again at the second at you know at the retrial and we have experts you could have for example and you can get we actually had two trials where there was a defense put  on he was found guilty and then they had to do a reach around the special circumstance obviously by the time of the retrial the prosecutor already had all of the information that you know in terms of the defense case that already had all of that information so it just testify inconsistently in addition to the impeachment issue there's also the issue of closing public proceedings now this court in the united states supreme court and in many other courts have consistently stated that you cannot close public proceedings that the public has a right to access these kinds of proceedings are evidentiary hearing was open to the public and the in its part as i know the records are still in the district courts files and this is not a question of making it open to the public this is a question as to whether or not this information can be used in a subsequent court trial but what we're not we're not trying to seek an unfair advantage here we're not asking for trial counsel spiles we're not asking for any a communique let me let me come back to this question that i'm not sure this is the legal standard but you said you're not trying to seek an unfair advantage well obviously if there was ineffective assistance of counsel earlier that was not your fault i mean the counsel for the other side but it maybe you thought unfair if there isn't an effect of assistance of counsel we are now in a proceeding designed to test whether or not to defend its constitutional right was violated by ineffective assistance of counsel and the price you're arguing for the and the triggering for that is the sort of violation of his constitutional right by his earlier counsel and i understand again you were not as or only your counsel any ineffectiveness of the earlier counsel is not your fault but nonetheless it strikes me as unfair and i think unfair even within the meaning of bennett to make that be the price for exercising your right to challenge and effective assistance of counsel your honor if we were seeking to use the information in the case in chief i think that you would unfair advantage but we're not seeking to do that in fact if none of these witnesses testify they wouldn't be any need for he's made but the supreme court has said repeatedly in this court disagreed that just because something is protected in one context for example in the simmons rationale and the line of cases following just because something is protected in one context doesn't immunize witnesses from being in peace if they should testify inconsistently  understand that but you don't know how it works and trans or earlier testimony that you want to give somebody on the record in a deposition you want to get somebody on the record in an earlier trial not necessarily because we're not merely because you want to prevent them may or may not be lies and those then can be used to discredit the testifying witness and i think if you if you have access to the hearing and ineffective assistance of counsel and all of that testimony and you can sort of pick out in cross examination saying didn't you say yes didn't you say that you're not going to be confined to statements of absolute lying you're going to be you're going to be able to use any competent counsel would use inconsistences well you're on and i yes i  understand what you're saying but on the other hand isn't that what the role of a trial judge is for is to to determine that any kinds of abuse doesn't occur and essentially what we're trying to avoid  question of perjury these are witnesses at least as i understand in the context of this case who've already testified in the state trial maybe twice and they're now testifying in the federal hearing and to the extent that they're telling stories that are what i'm saying and if it's a lie and you want to go after her perjury and there really is perjury you can go after her that you could spend it but i think you know if you look at the trial in the sense of trying to have a fair trial all round you don't allow witnesses to give testimony in an open public form in a federal court and then say that nobody can know about it or or you know that they're absolutely first day of the hearing and that was specifically with respect to trial counsel and then the order that was entered in this case was an entered into laughter the hearing was over but all of this information was disclosed all of the depositions were taken without a protective order there was no out the idea was that the trial counsel was ineffective for not pursuing a mental health approach particularly and that these this kind of testimony was available at that time is that where you got into these experts well the well it's just very briefly that there was a mental state defense presented a trial of diminished capacity and then and there he was corpus proceedings can argue that his his defense should instead have been that he suffers from p t s d which is a different type of mental defense so the experts at the hearing were presented to say this is the defense trial counsel should have presented it so i mean that's another point we've made all along is this was never any argument put words in your mouth you can tell me where i'm wrong but this case is different than did occur because this information was never you know trial counsel's file exactly because we haven't developed it and that was the whole order and the answer to that question is now he did not the protective order here state that protected the information includes attorney client privilege material and attorney work product that that information example why would that be the attorney's work product i believe that some of the information on which the experts relied on it came from the trial counsel's files so to the extent that it falls under the rubric of attorney client privilege or attorney work product it would be affected but let me let me follow up on this if i may use your position that what is appropriately protected falls exclusively within those two categories that is things that are covered by the attorney client privilege and things that are covered by the work product privilege and is that your interpretation of what judge white has done or instead has he protected those two categories plus  i think if you look at the history of the protective order here it's actually the former that initial protective order that judging run issued explicitly stated that expert witness files would be covered by the protective order then judge white modified it to say attorney client privilege material and attorney work product doctrine so would you be satisfied with something from this court this it's not an abuse of discretion in so far as it covers only these two categories of items and anything that you know virtually was included that was other than work product or other than attorney client privilege that's fair game for the prosecution i don't think the court needs to even reach that issue i think although that's what we may or may not but i'd still  answer to my question would that be satisfactory to you and your client if that's all that the protective order covered i think actually if you read the protective order it's a little bit more detail than that in that it says it also that's still not an answer i want to know if that's sufficient for you or if you're asking for something more if the information comes from the trial counsel smiles and could not have been found in any other manner fashioned besides being found in the trial counsel's files it's covered by the protective order and i think judge  directly by the attorney client privilege and things that are covered by the work product privilege and anything that even is originally outside of those two categories or has been independently developed even though it might also happen to be in that in those categories would be fair game for the prosecution and the trial in think could have been independently developed if it comes uniquely from the attorney client privilege of the attorney work product doctrine that would be covered by protected it would would be protected information and would be covered by the protective make motions by the state to say i want to use this testimony i want to use this file there have not there have not been such motions and that brings us to the second issue of whether or not this actually part of this order is right for review as developed independently what do we do with a problem that is very common in various forms of litigation i find something through my own efforts on behalf of my client it's very valuable to me or maybe valuable to me only in the sense that if it comes out is really damaging to my client it's out there and available to be discovered by the other side but they haven't discovered it it could be discovered that they haven't now for example in this case let's say we have something  constitutional violation occurred what you've described her is exactly the problem that we're concerned with even though the information if it had been discovered independently is not protected exactly but by having access to trial coun one is what is being sealed and what is the state not going to be able to look at or look at because of the sealing water and the issue of sealing has not been addressed by the court because we were unable to file an order requesting work delineating which information should be sealed and which information should be not should not be sealed so for the purpose of this litigation at this time all we have is the order all we have is a protective order and all we have this and it is again the narrow issue of when you read this protective order was it an abuse of discretion to protect the information as described by judge white is an abuse to protect attorney work product information or training client privilege information we do not believe that this pan needs to define what is covered by that particular order merely needs to ask the very very narrow question under rule twenty six is this and we decide if it's an abuse of discretion if we don't know what congress don't we have to figure that  sat on or authored opinions have have protective orders which are nearly identical in scope and coverage as to the one here and bit occur the protective order specifically stated that attorney client privilege information would be when you get back to the street corner position that the protective order as it now stands would not prohibit the state from cross examining the expert from and you can't just say well the testimony is available and we don't have any testing of that we don't have the actual testimony we don't have the district judge application of that and the district judge tracing that through because while we have is  can right now we have the protective order the second issue is is the ceiling water at this point what mr gans and the council need to do is to sit down and determine what parts of the evidence their records should be sealed in light of the protective order one of the issues is whether the expert testimony should be sealed and if it falls within the rubric of attorney work product or attorney client privilege obviously we would make sure that that information remains protected but and what do you see the military record that they never previously saw and never made the effort to find now that they found it and they say oh you know there's some really good information in there now i want to go get that the state  don't have any application of the order by the district judge on that question we don't that's her having we don't have anything for this panel and does that come with an work product within the mean in this context question to work product is a protected work product is i mean if they don't on some of them then at least clearly not protected work product was they found in the family but now we know they got it i guess they could go out and find it now but it's not independent i'm not sure whether that comes with an work product or not discretion to issue it as it is the questions that you're posing today are hypothetical questions how will it be applied if the judge does x would that be a violation of the order or a violation of rule twenty six or not how would those issues come up in those areas where there may be a difference of view how would that play out i believe that is the one we have the issue of the court allowing us to are inviting gant to submit in order to steal the other gentry record that will inev why home if they were raised in the state proceedings in the state proceedings if they attempt to use information that is deemed protected by the protective order i think that at that level at the trial level that would need to be decided by the court and in protective order is here for us to review and to interpret and understand and that the part that says here's a protected information as and here's what it's not and that part of the order is not an abuse of discretion the aspect of whether the record should be sealed is an open question and not before the score and we would see any guidance that you would give would be a mere guidance if it's only dictum on that issue because it's not right for  we are prohibited from using it in any way the body of the order seems to you know the body of the full order as opposed to the narrow confines of the protective order seems to encounter everything that occurred in the hearing which is why the happened and the judge and said well we agree with you on d and we disagree with you on e m f we would then have an actual application of the order so that the judge would be telling us the better judge would be telling us this is work product as i understand it within the sco order but we don't have that now well we don't have it now and i and i couldn't take the risk of losing in a fuel from the order and in general but it but i just want to as you know what is one now because of the time you took the appeal we all we have is the face of the order but we have the face of the order which we've argued is overbroad and we've also argued that in terms of the ceiling that unless an extraordinarily high showing is met a court tell you you have an opportunity to find out not just how you interpret it but the how the judge interprets it and would apply it to you we don't know that yet so you may think that it's going to be terribly broad you may turn out to be right but you make sure not to be wrong when your honor i reconciliation their position in the district court was that everything was subject to the protective order the entirety of the proceeding was privy to the protected were that's not the position i've heard them take today that's why i'm surprised because they're they're taking a very different tact not only from their position in the district court but from their position and everything in this court you think it would be useful for this is just me asking had i've not passed this by anybody but do you think it would be useful  think that is the only question is whether we can short circuit what is before  we have no idea whether that will happen or not he's testified twice before it might be permissible for the prosecutor to use his deposition testimony to impeach him and i suggest there are ways to address that such as turning those tapes over to counsel failed to develop the seven you know this evidence should have been you know as a practical matter it strikes me as most likely particularly with family members and so on but maybe even with experts that gant is now getting in the hearing in front of the district court the testimony that is most favorable to him and if you go back and retry what you're going to most want to use and will find by far the most useful as impeachment it was what is what was said at first trial th guess is that has no one is enormously improved by the time it gets to district court you can impeach that now in this trick in the federal district court by bringing in what happened in the state in the state court so a lot of this you know you don't want to bring out well so in other words have your consultation with counsel think you're out there you know there's not very much i want to use there maybe a few things your honor i understand your point and i think that family members certainly made every effort to testify favorably in  under some time and you know and i'm not a distributor in handling this case and i don't think that just because something we might then we might not want to use something necessarily in titles a court to say that publicly presented testimony in a federal court eventually hearing is somehow then subject to a protective order like this so you're talking in a sort of an academic sense and in terms of what the prosecutor might want to use the prosecutor might not need to use any of this information that gives the court the right to keep it hidden but i'm trying actually to me do the opposite of talking an economic matter i'm trying to figure out what's in the forest in a way that we can usefully decide as distinct from things that really haven't been narrowed down by the white house all have them in narrowed down by the district judge and the application of the order because there are lots of questions that hasn't come into us and in an abstract way well i'm sorry attempted to present this in this concrete a fashion as i mentioned i understand that but having brought it to us on appeal before any testing for example of the ceiling water by the district judge necessarily means that some of it has to be abstract and you can see in front of us well i don't want this and i want that but that's only in front of us and briefs that's not what your honor that's not the order we have no power to hold it's actually well she it's actually no different than what i presented to the district court first start in none of which involve stealing orders we're arguing the legal principles involved here number one the legal principle that you cannot steal public perceiving zip as a general matter and number two that we have agreed that better