it considered the statutory factors in the intel factors required by the supreme court only ex parte it made clear that once the subpoenas have been issued ex parte appellants could not argue reconsideration of those statutory and discretionary factors under one thousand seven hundred and eighty two dollars and that any evidence and argument that appellant's had for the court to consider would be considered only under federal rule of civil favor excuse me and apple ease are not all interested persons under the statute in each portuguese proceeding for which they seek discovery the district court order should be and the other side is arguing we need to review this under the framework for the collateral order doctrine and you seem to be ideally just treat it as a general finale question and it seems to be the parties almost have the opposite fr honor that's why we argued under both the finality standard and we also addressed the collateral order doctrine when when applebee's raise that in their motion to dismiss which was filed gosh the same day as our opening brief was filed about two and a half months after the notice of appeal had been on file let me let me address your honor's question we were usually uninterrupted is this final you are going it is fun i was at final when all those things like a final judgment in the matter be closed in an apple right your honor and and and that's that's why we really embrace the collateral murder doctrine as well i think your honor is it is is is is right on point we need to address both we started out with one thousand two hundred and ninety one but we addressed the collateral order doctrine because that was the framework used in texas keystone and i think the discretionary factors finally concluded for the st prong of the collateral order doctrine finally concluded and finally determined or conclusively determined an issue in the case  we certainly acknowledge that there are inconsistent precedents in this in this area and we were forthright we think in our notice of appeal from arnos of appeal on forward to let the court decide what may be an open question in the circuit let me talk just a little bit about about jurisdiction so i've talked about the conclusive determination i think that is the real key to the collateral order doctrines application in this situation because i think under the texas keystone framework we meet criteria two dollars and three dollars that the decision that has been conclusively determined is separate from the merits of the case and it's affectively unreview at the end of the case because this court seemed to make clear in texas keystone that we were talking when we talk about this case we're talking about the foreign proceedings and in this case your honor out of an abundance of caution we appeal d the i think there are strong public policy arguments to support an immediate appeal of the district court's let me have a rant and on whether it's conclusive or not one of the  issues you briefed is this extraterritoriality question which is there's case law out there that's inconsistent around the country it's an important difficult issue but then as i read the recent ruling that you provided notice which we appreciate from the magistrate judge basically the ex she resolved a lot of that by saying you will only have to and correct me if i'm wrong you're more familiar with the order than i am but she i thought she basically said if it's not in your possession right now you have to reach out to your affiliates and go grab these documents and something to me that highlights that it wasn't conclusively determine because now you've gotten more relief on that extraterritoriality question certainly understand the court's point but  court or as the district court did funnel us into rule forty five dollars as as a result of its failure to reconsider its ex parte grant of the application for discovery you affectively acknowledge that d seven hundred and eighty two applications are granted ex parte there are there are a number of different cases where seven hundred and eighty two applications have been granted ex parte in this case there was no reason to grant parte because the defendants with addresses were known they were in the district they were there was no evidence they were going to flee there was no immediacy to the request the district court took about a month to  resolve the ex parte application and to compound the secrecy your honor the ex parte all the ex parte documents were filed under seal so there was no public record where the river where the respondents the  a notice of that pending application and make their seven hundred and eighty two dollars arguments to the district court the case i would point the court to is a case we cited in our brief it's a district court case from the northern district of california in two thousand and six called microsoft in re microsoft and what that case explains your honor is that it's always the best practice wins when an order is granted ex part including microsoft and the others talk about it our day grants up the application in those cases was there in it and just successful are otherwise to revisit the application process once it determine whether it was obviously granite yes your honor and i will say i will tell the court that the cases are not uniform about how that reconsideration should should take place there are some cases including the three that were relied upon by the by by chief judge lynn here that funnel everything else after the granted the application into rule forty five but what we suggest to  the court and urge the corps is that that certainly is not the best practice because there are strong public policy reasons why the district court should be performing a gate keeping function under seven hundred and eighty two dollars and if the court  for goes any adversarial consideration of the statutory and discretionary factors under seven hundred and eighty two then procedural rights of procedural rights have been lost and that's one reason why we urge the court that a bright line rule that allows the appeal of a denial of a motion to reconsider a seven hundred and eighty two dollars application and that that order of denial should be appealable because it would give certainty to the of the litigants it would give certainty to the district courts and it would focus the district courts on the procedural rights that are being trampled when district courts do not reconsider the the statutory in the intel factors in light of the evidence in the arguments made by the party from whom the discovery has been request you agree with you that we have jurisdiction over the earlier order and it just seems that's that's an advisory hypothetical opinion if you're not actually being required to produce anything overseas well your honor i understand i mean our our point is that we shouldn't have gotten to the rule forty five analysis because if the district court had looked at the seven hundred and eighty two statutory end of discretionary factors the intel factors reconsideration after we filed our evidence and made our arguments that we would have obtained at least the same if not more relief at that point because we strongly urge the court that the relief that we were entitled to based on our showing we made on seven hundred and eighty two dollars was that the application should not have been granted it should have been denied and that any ex parte order granting the application should have been appealed so that the district court will look at those factors under the statute and under intel and so that this court can look at those statutes before the u s courts are involved in supervising discovery so you say you don't need a ruling for your case but we need to make it for other cases in the future is that would you say well your honor i think i think the court could i mean i think the court could five if that if that makes sense your honor i guess i'm just are you saying as a practical matter there is more that you will get if we make that ruling than what you've got not read yes your honor because the apple ease did not meet one of their burden to prove one of the statutory factors that's required under seven hundred and eighty two that's the interested person factor you know what you have is a conglomerate of  parties some of whom are in one proceeding some of whom are into proceedings some of whom are in no no proceeding overseas in portugal and you also if you look at the intel factors although those are discretionary factors they are factors that a court must consider and exercise its discretion in ruling on the seven hundred and eighty two dollars application all for intel factors favor of the appellant's here your honor  we have argued that this proof is largely within the portuguese reach the the information is largely within the reach of the portuguese tribunal's that this is an attempt to circumvent portuguese prove gathering restrictions essentially respondents are making the extraordinary claim that this the district court's decision simply to allow a subpoena to issue should be immediately appeal of all as a matter of right and before the district court has made any determination on whether it is going to had reached a final inconclusive determination regarding what it was going to enforce in certain of those cases the district court retained oversight over further proceedings regarding compliance with the court's order but it each and every case the substance of the court's order was fully resolved and here as we've noted the district court proceedings are ongoing as evidence by the magistrate judge his report in a recommendation issued just last week now as a legal matter finding jurisdiction over this appeal will be contrary to both section one thousand two hundred and ninety one dollars and the collateral order doctrine both of which require finality and both of which evidence this court's strong policy against hearing piecemeal appeals and appealable what ironically a court these respondents who are rd parties get to subpoena targets greater rights than actual defendants in federal court for example if the defendant in a federal court loses in meritorious motion to dismiss they can appeal until summary judgment to discovery summary judgment possibly a trial and then final judgment is entered now bears out this is here because i think it's gotten lost in a lot of this that respondents aren't being they're not liable or facing liability for anything in these proceedings petitioners are simply asking for documents and testimony relevant to proceedings in a foreign country to which respondents aren't even a party this she went on you know as you with this case be right for an appeal when the district court has reached a final conclusion when it's reached its final order adopting the magistrate judge you were recommendations to the extent it sees fit when that order is concluded in the district court has reached its final scope of discovery at that point this case would be appealable and then in your view do you want to go all the way back in appeal everything back to the beginning absolutely and that's what happened in ecuadorian plaint ecuadorian plaintiffs concerned whether the subpoena had properly issue is all about seven thousand nine hundred and two but again that the people did not come up until the district court had ordered a foundational deposition decision making process as a practical matter asserting jurisdiction over this appeal would obviously set a difficult precedent it would mean that every time respondents in the seventy two dollars proceeding received a subpoena if they didn't like they could immediate appeal immediately appeal it this court if it concluded that's the subpoena had properly issued would remain for further proceedings and then the respondent could file yet another appeal if it concluded that the if if it disagreed with the district court's final determination regarding enforcement and again the inefficiency of this approach would be compound a by the fact that the district court plays a critical role and narrowing the scope of discovery as you're seeing right now with what the magistrate judge is doing she might end up wanting to appeal that rono you're going to decide that yes we could have both sides are now with parts of the recent rules that's exactly right and again i think that's another reason to wait until the district court has come to a final resting place because should prevail and there is some part of me that wants an affirmative ruling on that right now but i think that the best the proper course of action is to dismiss for lack of jurisdiction but if this court is inclined to consider on the merits then the district court's decision should be confirmed because it was clearly correct first there was nothing inappropriate about the fact that the court granted the application ex parte it's actually the norm in these proceedings and it's not because of  issue i think if you look at the texas keystone case it gives it the best explanation of why that happens these proceedings tend to go into phases in the st phase in texas keystone explains that seventy two does not  not establish the standard for discovery there is a st phase that is a threshold determination or screen as to whether the federal court should allow for a litigant to enjoy discovery in u s courts under the federal rules of civil procedure it's really about whether this is a good use of federal court resources and if you look at the statutory and discretionary factors under intel they are all targeted to that issue they ask is the petitioner someone who's going to be able to use this discovery respondent someone over which the court will have jurisdiction to enforce what kind of proceeding is it if you look at the intel factors they ask what what will the foreign proceedings permit this discovery will they will they receive it well will just even be a useful endeavor and once that process is completed once that spreen is is to fill then the subpoenas can issue and then the federal rules of civil procedure take over on the discovery question so the reason a lot of these proceed ex parte is simply because that st inquiry is really about the federal court and whether it's an intelligent use of federal court resources to even be getting into this on the due process point this isn't tiredly consistent with the way discovery proceeds and other federal civil cases and of regulars is for a federal civil case the parties have their rule twenty six up conference and then they can shifting here this is entirely consistent with the way federal subpoena practice works now even if this court concluded that there was something improper about ex parte consideration that that was harmless because the factors were clearly fulfilled on the interested person specter which is the only statutory factor the respondents challenge is that is the only factor that this court refused to know and on the interested persons factor nine of the petitioners are actual part to the portuguese proceedings another four are agents for those parties and it's very clear under the relevant case all that we said in our briefing that agents are interested persons for purposes of the statu and the remaining factors the entail factors are reviewed only for abuse of discretion and we would respectfully submit that the district court properly exercised its discretion in this case the st factor consider parties to foreign press consider is who the parties are to the foreign proceedings and asks whether there is an apparent need for discovery over and above what's already available in the foreign forum and here the district court correctly observed that neither the respondents nor any of their affiliates are party to the portuguese proceedings so the petitioners can't get party discovery from them there and any event some of the documents petitioners are seeking for respondents are internal to respondents so there would be no way to get party discovery from the other parties of the portuguese proceedings in those proceedings regarding the issues we're seeking in the seventy two proceeding moreover there is no exhaustion requirements to even to the extent that there is overlap between what we are seeking in the the nd factor whether the risk for an tribunals would be receptive to the assistance of this court was very clear and the ecuadorian plaintiff's case that it will not embark upon speculative forays into legal territories unfamiliar to federal judges in the foreign forum is presumed to be receptive absent authoritative proof that it would reject the evidence an authoritative proof is a very high bar it's a judicial executive or legislative declaration that clearly demonstrates lack of receptiveness declaration of a foreign law expert is not authoritative proof and that is all respondents have provided and in each of the cases respondents have relied on the foreign tribunals itself provided written notice of lack of receptiveness that has not happened here respond as have also pointed to port portugal's article twenty three dollars reservation but that again is not authoritative proof that reservation simply says the portugal will not authorize parties to conduct broad discovery in portugal it says nothing about whether portugal would be receptive to the fruits of american style discovery if it had some some documents relevant to a portuguese proceeding then again whether a document would be discoverable in a foreign country is not the test the late justice ginsburg observed again in tow that a foreign nation may limit discovery within its domain for reasons peculiar to its own legal practices culture or traditions such reasons do not necessarily signal objection to aid from the united states federal courts on the rd factor the district court correctly found that there was no evidence the petitioners were attempting to circumvent the portuguese gathering restrictions only evidence respondents have cited is that the parties themselves in the portuguese proceedings have made productions that are less than even what the portuguese courts ordered there is no evidence the portuguese the portuguese tribe you know has any restriction against further discovery course it said again and again that under rule forty five dollars it would gladly entertain any further evidence and argument regarding burton and again that is precisely what has happened with the magistrate judge's recent report recommendation issued do you have to mail under all four of those factors and what happens if if two of them go in your favor we're going to actually go in favor of the other side how does that work no if there is no requirement that all four factors be met again in their guideposts only to inform the district court's discretion there is not even to the burden shifting analysis that is simply considerations i think the intel phrased it that bear consideration in guiding the district and i think that is one issue that the court need not trouble itself with here because there has been absolutely no indication that there is any restriction on love or attempting to do in portugal we noted in our briefing you know circuit court that has been confronted with the issue has found such a categorical bar and with respect this court should not be the st in this digital age whether a document is needed abroad is a fact  sitting here in texas it could be much easier for me to access a document on a swedish server with the press of a button then paradoxically it could for me to go down the street to a warehouse and get a hard copy document it's an incredibly effective intensive determination that really should be within the district court's discretion in the st instance to weigh and that again that's precisely what the magistrate judge has done in this report recommendation considering the evidence presented by respondents and centrally giving them what they wanted ruling that their foreign affiliates would not be required to produce documents that they were holding now we disagree with the breadth of that ruling and we may be filing objections but again it demonstrates that the district court is conducting precisely the kind of factual balancing that th yes your honor may it please the court judge cause i think you started to ask during my initial time what's your best case on jurisdiction or i may have heard some of that i would really commend to the on its earlier decision in kestrel coal and on the th circuit decision in re republic of ecuador those are some of the cases that we sided in our briefs are not even in our notice of appeal as cases in which there were some ongoing proceedings proceedings either ongoing or contemplated in the district court about further scope of of discovery under a seven hundred and eighty two dollars application and of course the th circuit in her as cults are held that the appellant had missed to two appellate deadlines by failing to appeal to earlier decisions of the district court in connection with that seven hundred and eighty two discovery i think gate keeping and the federal court as gate keeper under seven hundred and eighty two is equally important as the narrowing function that coun spoke about i think this is a somewhat phased determination and that's why a bright line rule that allows a party from whom discovery has sought to appeal the denial of a motion to reconsider the ex parte grant of a seven hundred and eighty two dollars application would be good for litigants and it would focus the courts on the procedures that should be used in those in those situations the court asked when will this be ripe for appeal well under the under the magistrate's order or they came out last monday the court will not be finished with its work even after it rules on objections to the magistrate's order  magistrate left open the opportunity to raise privilege or confidential business information objections trade secret objections to additional analyses that might be within the subject of discovery so it puts it puts appellants like my clients in a in a very awkward situation when do you appeal do you wait do you go up after the denial of the motion for reconsideration do you go up after the denial of rule forty five dollars objections or do you have to wait even until these other objections are ruled on before you go up it's a very difficult situation and a bright line rule would would would fix that five we did deal with those cases in our briefs particularly in the rip why brief one is an unpublished nd circuit case on which the district court relied where the person from whom discovery was s was going to flee the jurisdiction and the others are similarly not well reasoned and should not be followed rather a motion to reconsider should be given full adversarial consideration on the interested persons question the statutory factor we submit that the affidavits about the the rights that the non participants in any portuguese proceeding have  wholly conclusory and we pointed that out in our motion to for reconsideration to the court that's the motion that the court did not did not analyze did not reconsider under intel parties need to have significant procedural rights and the four non participants here don't argue that they have the right to appeal any adverse determinations in the portuguese proceedings they just say they have the right to control some evidence presented by other parties in those proceedings without any explanation of what control means or what the relationship is so agency simply isn't enough we'll rely on our