and i know from your joint submission that the f c c commissioners have to approve this settlement and have no idea personally how likely or unlikely that is but another fact virtually appropriate and please let me jump back to the settlement issue and then work my way into the argument well i'm just wondering because it we had some discussion among us as to whether it ma practical sense to proceed in the majority the panel felt that it did since the settlement status is uncertain but i certainly want to ask you more about that that point but now i'm concerned also that that perhaps the issue that's raised by the petition either is moot or it's one that the district court have to have an opportunity to a pint on again in the event that there is the settlement you know under that curtail case i believe with respect to the second issue  the act of production your honor i believe this court to be absolutely entitled to remain and to the district court for findings as to whether mr brazill as being out of custody changes the nature of the order petition and would submit however that based on that fact and law with respect to the act production privilege this court can go ahead and issue the writ of mandamus overturning the district court's discovery or i believe the court could handle that either way that the court offing with respect to the settlement i would like to address that first and also request that i have three minutes for rebuttal trial in this case began on november a court that we had reached a settlement in principle and made the motion to continue the hearing sense that time the additional information is that mr brazill has signed the settlement agreement the f anticipates that by december sixteenth the commissioners will vote on whether to accept or reject the settlement agreement the district court has also indicated that should the agreement be approved by the commissioners the court would enter this court should give the settlement process a chance to run its course before issuing any ruling on the merits we should know one way or the other within a matter of week or two weeks at most moreover there is no urgency to lift the stay that's currently in place a trial has been suspended at this point secondly the f t c it's not asked that the district court to continue the trial date pending this court's ruling nor did the f your honor i believe it was on behalf of petitioner when we filed the petition for writ of mandamus we also filed an emergency motion for stay and i believe it was your honor that was part of the panel that granted the state that  likely to be controversial of i don't know why it would be controversial your honor however i can't speculate as to what the commission will do the decision as to whether the commission a for relief from the order because there has been a substantial change in the critical fact underlying one of the issues on which they've petition for mandates and that's the issue and that's the issue with respect to document production now there's another issue as well and that is their argument that that is the portion of the court's order that requires braswell to disclose his basis for asserting the fifth amendment privilege if the settlement isn't accepted which i think this court has to assume if this court and this court is not going to put pen to paper until this court knows that the settlement has been rejected so assuming the settlement has whether if mr braswell is actually turning over the documents whether the document production privilege of the if the normand would apply and if the court has to reach that consideration then the second  privilege in the first instance the act of production privilege otherwise we're just where we are right now that's correct if they deny it if they deny it then perhaps if the court or the district court denies it then perhaps it's not be available elsewhere isn't that right now because the district court can still has to consider the factual issues that have not been considered in this case is that true for the second that's what i was trying to get out there yes or no you know it's not true with respect to the second issue the second issue has been the second issue does not change i guess what i should say is the fact that mr braswell is no longer incarcerated does not change the second issue however the issue if the if the used to district court gets to considering the fact the factual issue with respect to document production then it's important for the federal trade commission to know the also cite would be united states versus now that's six fifteen fed second page twelve thirty five that's a nice circuit decision and if you look at page twelve forty commission is asking the commission is asking for the names of crimes i think that's what the court is referring to what would be analogous to what the court has referred you when it says opening the door ajar it recognizes that even an opening the door ajar crops and you need that think in order to do to respond to arguments he's going to make or he make assuming this case goes forward with respect to the currently the subject of some law enforcement investigation by some criminal authorities state authority or federal authority or something it's not possible that there would be any substantial or real dish and all information if you were merely to disclose investigated there's no additional incrimination if he's not being investigated it's hard to imagine if you'd be any substantial or real invest a real incrimination i can't say he may be afraid of it but there wouldn't be any additional incrimination that would be no incrimination if you were merely to disclose the names of crimes to the defense or the way this normally works when i was a district court judge if someone invoke the fifth amendment and i had a question in my my regard in whether or not the invocation was legitimate that's exactly what happened was the basis of the implication was given to me in camera and then i decided whether or not the fifth amendment invocation was valid or not at that point it's  crime was never held in camera what was held in camera was the documents the contents of the documents or other specific responses to interlock of course not the name of the crime the name of the crime is always put in the court's decision and that way the other issue and you know you could you can make up some story examples but but if one of the crimes mr brass or what it would have required to disclose as well is murder you know nobody's accused of murder in this case but you could argue that that disclosure if you're required to make it  the commission the names of the cards would not in any way incriminate mr breslau i believe that's a factual determination and it should not be overturned even if it's not a factual determination or even if it's slightly a legal without retrieving the question of the disclosure of the name of the grimes well your honor i suppose what would happen is the matter goes back to the district court  really be we can't really three many kind of relief settlement side we can't really claim any relief until we see with the district court as to the question i was trying to get out earlier it's not moot but the district court has to start over because  custody and whatever relief it fashion's than the arguments you're making obviously going to come into play as are the arguments that mr braswell is making but that's a be a different order it's going to be a different reality based on different premises and  necessary at this point but even if this court does choose to address that issue assuming that the settlement falls through it is a factual determination that should not be overturned on a clearly on a petition  in the context of this petition for  do you agree that the cases you've cited always name a crime absolutely not you know what happens in those circumstances is this and those cases where the court the defendant and the prosecutor or the plaintiff are aware of what they're talking about it's discussed in open court in those cases where they're the prosecution or the plaintiff doesn't know the nature of the fifth amendment it's never discussed ok what's your best case that the ready to support your argument that where the in the government agrees with that process is that it's a minute in camera to the district court judge the district court judge determines whether there are valid fifth amendment exists that is exactly what happened here the government challenge the fifth amendment challenge to to the district court for tyshan are submitted in camera to the district court and the district court what's very important and overlooked by the government here is that the district court upheld the fifth amendment saying both it has a basis in fact and in law therefore there's no question that the fifth amendment could be asserted and that's the and the curtain goes down it's over it's an absolute privilege lost it's an irreparable injury but the scope of the disclosure of documents may be quite different on if the case goes back is that correct yes ron but i think what's happening here is we're getting mixed up between the two disclosure are right the first disclosure argument and i believe the government misstated the order of the court the court did not tell mr brazill to tell us the the name of the crimes the court ordered mr braswell factual basis for folk a so if there's going to be any production of documents based on the fifth amendment and this this question is still going to be right exactly right and if anything the fact that mr brass was out of custody would tend to the the scope of any production of documents would be left with the greater the would be less rather than greater because he's presumably going to be involved in the act of producing documents but the the only way have a live controversy even if there is a reconsideration of the act of production ruling to your fave your client's benefit unless there is that one that's correct ok yes absolutely right getting into i think what else is important with respect to what the government tried to argue to this court with respect to the disclosure of the basis of the fifth and then argument not the act of production which with respect to that the government says that the next case talks about the door being a jar well the door was wide open in this case where mr braswell put all the relevant information to the district court and that's where the the information needs to go if does it go to the government very agency that when the skiver the issues to conduct their criminal investigation more most importantly your honor the government tried to argue to this court that there was a factual determination that there are certain criminal torrie the district court used its own balancing test unheard of any fifth amendment precedent the district court's order specifically says and i'm going to quote thus given the nature of the disclosure and to this court that there was a factual determination of a waiver or a factual determination that it wouldn't be incriminatory single basis for the district courts and that clearly erroneous basis for the district court's ruling is the use of this balancing question i believe it's a question of law what the court did was to impose a balancing test that we're going to balance a fifth amendment right versus fairness concerns and i believe there is no precedent any case for such says you can't require somebody to disclose the basis of a fifth amendment claim i believe your honor the very nature the fifth amendment says that you're not you cannot be compelled to disclose incriminatory evidence that would be that no that's a different statement i could be but that isn't always in any cases it's always the case law under the fifth amendment as such under hofmann and cast a gar and all those cases say that any link in the chain that might provide it doesn't have to provide it i would submit that there would be almost no circumstance where such a balancing test that's actually sounds like a factual inquiry at least to some degree you have to decide if there's a link in the chain this comes up in tax cases i get them in the district court all the be forced to give a link in the chain any evidence that could be used to find other evidence would preclude the district court from ordering a defendant to tell the government that they the nature of the factual basis for a trial which are just in this case i believe always wrong i believe always because if the defendant would require to give to the government a factual basis for a crime that very information by and by by the by its very definition is in basis for the assertion of the fifth amendment that was the district court's order your honor such a balancing test such a balancing test balancing a fifth amendment right against the government's fairness interests which swallow the very fifth amendment in fact law enforcement could always point to a strong reason to get to the information through the stronger the rules and the more likely  it confidential exactly and that's the very underpinnings of the fifth amendment to allow an individual to maintain his silence in the face of it's law enforcement i believe whether it's in any agency you're out of there the case on united states supreme court it's clear that it applies the fifth amendment applies in civil cases as well as criminal cases the issue here is pretty specifically and i believe in any case would be dangerous where the district court is compelling a petitioner to disclose incriminatory information in writing to anyone but in this case we have the federal government involved i would disagree with mr whiteman's contention that the c is not a law enforcement agency they have the ability to pursue under the f t c act cases and issues and certainly may prefer also to our government agencies for a long enforcement the court's decision order already breached the terminations that mr braswell on this issue and i believe the act of production issue as well made a substantial showing a probability of success and that motion's panel is correct there is no basis for the district court amendment disclosure issue it's important to note that the f t c in its own admission and the excerpt of record i'm going to refer to page six hundred thirty five the f t c wrote as part of its argument in the joint stipulation that the commission has no idea as to the basis for the current claim to the privilege against incrimination the district court forcing compelling petitioners to disclose that information would be handing to the f t c the combination of the waltzing giving them the incriminatory evidence and as the court  not what happened in the district court's order which is somewhere in the excerpts of record its docket number four fifty one the district court described is on way what he just great judge walsh did it he incrimination the court recognized that this would be new increment new information but that's not enough it has to be new information that would result in croatia that substantial and real and that was the factual determination that the co