withholding these eight records however unlike the typical for your lawsuit the government isn't claiming one of the nine statutory exemptions something government is withholding these records under two flawed lines of reason first the government argues that the dis exactly why the why isn't the first of the two arguments that you mentioned really an exemption three grounds that it's otherwise properly withheld according to here the statute that authorizes the rules on  confidentiality exemption three doesn't apply because exemption three only applies to statutes passed by the legislature so the local rules are not not statutes passed by the legislature but they're required by federal law as part of the setting up specific requirements that are quire to be taken by the government to claim exemption three status they tell me what you're thinking about in that regard i mean there were harman's that the government has to disclose which which statutes they are using to withhold under exemption from rate they have to be very specific in nature i do believe this court has looked at this for some of these civil rules of the federal rules of civil procedure and has said those rules don't fall within exemption three because they're not statutes passed by congress i think for the same reasons these local rules wouldn't apply as well to some so if the district court had in there the negotiations to be you know protected in and not discoverable in any proceeding you would say that that would be a different case how or or you would you would be making the same you you would be a different case your honor in that instance there would be a protective order preventing the disclosure of these records and unfortunately we don't have that in this case if the court if the government cleared out or the house committee the other party about litigation could have went to the court and asked for a protective order to prevent the disclosure of any of the records out were being transmitted between them but if a judge decides that the protective order isn't needed because the local rule covers it  why isn't that just as good as having a protective order for that to happen in this case either your honor the judge in that specific case did not say there is no protective order here because the local rule applies so that would be a different instance in this case as well your honor in this case saying the judge jackson would have would have had to do that it's not good enough the judge leon centrally came to that conclusion that's correct your honor because the protective order would be would have to be in place i judge jackson  judge leon didn't find that judge leon first found that the moco rules apply what the rules simply do not apply based on the face of the language the common general in terms of just bracketing that for a moment and of course we want  get to that but i'm just curious about so so the statute i think that's relevant is twenty eight u s c six fifty two d which requires confidentiality  provisions by local rule for confidentiality of the alternative dispute resolution resolution process is and to for have a disclosure of confidential dispute resolution communications so it's basically a statute mandating something like the local rule here and i i guess i wonder if you have any cases that have anything like that form you know you mention the federals cases but there's not a statute mandating you have to have you know federal twenty six and has to have this bottom line  exemption three in this case they simply claim that the local rules apply my position that local rule the local rules do not apply because the government and the parties in that litigation were ordered into formal mediation on correct your honor but we're not talking about that type of communication we're talking about the two parties in this case the executive branch in congress meeting conferring discussing these records that were sponsored through a subpoena they were not in the she could have meant that i think that really would not be ridiculous i don't think so your honor i think the court had a specific case in front of her and he she didn't want to know what the parties were saying outside of her court room jesus was so it would be perfectly ok if they released the matter to the world and somehow she managed to avoid knowing i imagine she assumed that was going to happen based on who the parties were and their desire to want to placate everything in the media if she thought that was going to be a problem and she want to prevent that she could have done south she could've put a gag order on the parties she could have issued a protective order as judge well can suggest that but she didn't do that all she said was you know i want you guys the top but i don't want to know about it  out so yes if the governor went to judge jackson and said can we issue a protective order here there are reasons why she would make a determination it's not entirely clear if her determination would be a protective order is things you probably could have your honor it's because i had interrupted you when you were about to say why you thought if it if it were brought before jackson that she might not find that she had authority to enter a protective order well i think we just don't know what would have happened and we don't know what would happen which is why i think it is appropriate for the case to be remanded and have to go through that process i'm just not one hundred percent sure what jurisdiction she would have to think that's important to remember and none of that has happened yet in this case is it her interpreting her own order goes she have because the case is still pending before her the motions made to you know to prevent disclosure of those  you know that could be your honorable work if she issued a protective order today and the government still hasn't turned over there were turned over those records i think the government would have an argument to say that we cannot turn these records over now because protective order now i'm not i don't want to agree with that one hundred percent i would have to look at the case on that but i think there would be a strong argument there and i think when  already crossed between the two parties in the case why haven't they been available to you from the congressional side completely up to congress decide whether or not completely voluntary whether inside that because i'm not sure if we have your honor would what is the status of the litigation be between congress and the justice department before judge jackson i believe i believe your honor that summary judgment briefing has concluded and it is a waiting a final ruling there's been a lot of briefs filed in that case and so i'm not one hundred percent sure that you're arguing that you know the principles of for you know favor of disclosure it said or it said or lose principles really align with the facts here where you're trying to get documents related to settlement discussions and more a mediation where really all of the case law in all of the general principles are that you know there's a privilege there in the sense that you don't want to discourage settlement we want to encourage settlement in you potentially discourage settlement if you may you know discussions  of ailill to the world i think there is a concern there generally your honor but i think i think that may be a good policy to have these records not be able to be disclosed however that is not what congress has said if congress thinks it's important congress can pass legislation adding that to the list of the nine clearly delineated for wigs options i think if the court was concerned about that the court potentially may enter protective orders when necessary to prevent that disclosure the problem the problem with that is it's a policy choice and right now congress has decided that for ways that disclosure of not in withholding statue and that we need to abide by the nine clearly delineated exemptions and within those you have exemption three for specific statutes which doesn't apply in this case you have exemption five which is deliver a process which covers most general  non discoverable material that simply doesn't apply in this case as well but if it's good policy your honor and cochran's congress needs to fix that i think in this case at this time the records are being improperly under the statute as written and as applied by the courts just of i don't understand your argument because is your argument that these documents are to covered by the local rule or is it your argument that even if they are covered by the local rule that's the basis for withholding them from disclosure our argument is that these records are not covered by the local rule because they were created prior to the parties entering the formal mediation so you're not making the argument to the even if they are covered by the local rule that's anot valid basis for withholding it may be your honor however that's not the case that that simply isn't the case here today we're not talking about records that were created after they entered the formal mediation process you said that maybe and i wasn't sure which what you were agreeing with he said it even if they are under the local rule are you saying that's not a valid basis and i heard you to be saying you don't need to argue that because you think they're just not under the local rule that's it that's our job therefore if we found that they were you would have to live with that story and i think  we'll give you a couple time minutes for both but let's hear now from mr syntax supporting the view that these were confidential communications and george jackson expected them to remain confidential and so let me just play devil's advocate to make the contrary arguments and eat his point get your reaction i judge jackson's comment which is i think maybe even a stretch to read it as an order if he says i don't want to hear it seems to me that that might be very parallel to that many judges don't want to know anything or be involved in any settlement negotiations if there are sort of negotiations sent to a magistrate or in a court like ours where we have mediators centimeter and part of that is they don't want their impartiality to be tainted by any knowledge of what kinds concessions the parties might be willing to make and what you know what's going on between when they want to make this decision on the law and the notion it's not so farfetched in my view to think that she says i don't want to hear that i'm not going to read anything that comes out of the press on this and it's anal us to a juror and sitting on a case who you know we don't have to prevent the process from covering a case in order for a juror to fill you know that neutral's obligation to remain impartial they don't really they won't listen then tell people who sound but there isn't one ok so i don't mean in the course and so i was asking about the order in the interpretation the order because then we can talk about the rule which i think is the more general confidentiality interest but in terms of the order i've given you a characterization of what she was which yes ok well let's talk about the local world and so local eighty four point nine has one way of understanding it is that when congress set up a quarter it a d r some parties w were opposed to that because they said well we're going to have some some civil servant that we haven't chosen as a mediator sitting on a case and how do we know that person isn't going to blab to the judges to the public you know we we don't we don't trust that person who we haven't hired and so in order to sort of grease the way and allow that legislation to go through there's a there's a portion of it that says no not any everything in that will be confidential but that doesn't create a general settlement problem that's because when we have parties are talking we can agree that we're going to keep it confidential and we have joint interests and we're not going to violate that that's part of the subject or i can accept agree or you know hire someone who they think is going to keep their confidentiality the concern is when you have the civil servant that's and voice that i knew so so there is a reason to be that quite narrow in reserve you know you know we would disagree in terms of and we can talk about whether in other circumstances real should be word you said those talks became part of that mediation do we know whether these actual documents these eight documents were ever given to the court mediator in the process of the mediation is always a possibility of a court could always to respond to a order into mediation so i don't think just because mediation is a possibility it means it was in connection with it and then with regard to the forty eight letters that were eventually submitted to the mediator the local rule well eighty four point nine c three specifically specifically states that information which is obtained through discovery or other means the mediation process shall not be rendered inadmissible or non discoverable because it was used or presented in mediation but these weren't obtained through discovery or otherwise they were developed by the parties in the process of settlement i think they were developed by the parties outside of the mediation process so i think that rule would apply in this instance that just because the records were eventually handed over to the mediator doesn't mean that they're protected it's much like the attorney client privilege just because the client work product it's that it's the attorney's thinking that is protected not the underlying facts and i don't think we would disagree are only the government would disagree with that that if if an attachment to a settlement was let's say a damages computation and they put that package together here's a few pieces of evidence and here's our thoughts on it and gave it to the mediator it's only the here's our thoughts on that part and the fact that it was given to you there that would be privileged by eighty four point nine but i think you're exactly right not th underline not the underlying documents which means the justice department may have violated the mediation protective order by telling us that the records were produced to the mediator because the fact that they were produced the mediator is the is the material that's being privilege under the rule not the material that they provide but again last point on that it's only four of the documents to the extent of the court thinks that