thank you your honor in may it please the court the purpose of section seven hundred eighty two is to assist foreign tribunals by providing them with evidence from the united states the reason her a as a seeking a very limited modification of the protective order in this case is so that it can meaningfully present evidence that this court ordered in the first appeal to several foreign tribunals i'd like to take just a few seconds to read two sentences from the proposed orders which were in each of the proposed orders given to the district court so ferocious as to be excluded from certain protections in the protective orders and said herrera show use all mechanisms available in the foreign forums to protect the site of documents from public disclosure when submitting them to such foreign courts tribunals an agency's biomet eskom and its counsel showing tain there are copies of the cited documents as confidential and not disclose the cited documents to any unauthorized individual nor allow the cited documents to be disclosed to the public that is precisely the relief that harass was seeking and the reason this was such critical relief is that her biomet was able to use the existence of a protective order as a mechanism as leverage to delay proceedings in many of these foreign forums it is undisputed in the record that in viljoen the proceedings were delayed by eighteen months or more  in norway the proceedings there's still no trial date in norway and the proceedings have been delayed over two years and in denmark the proceedings were delayed over nine months the purpose of the protective order is to protect hello hello your honor it seems to me that the issue of who ought to have control over the cited documents implicates substantive questions over whose trade secrets are in these documents is see your position that the german i'm asking you well as a as a so as as a as a matter of principle we believe the decision should be binding but we don't think this court needs to reach that issue because how you  and the reason of course what is you're going to say or is the reason is that for confidentiality purposes the courts don't need to make a merits determination all we need for confidentiality purposes is aphasia showing of the confidentiality interests and in our view number one the documents themselves several of which i would direct the court to appendix to fifty two fifty three and two fifty eight three of those documents clearly say on their face that they contain harasses information and secondly our view is the german judgment is at least prime acacia evidence of a confidentiality interest that her right size but the court in it's not but here is the principle your honor this court's decision and baxter says that we are in that case the public has an interest in knowing what the basis of a court decision is there is a presumption of public disclosure the way baxter applies here is the audience that has the right to know are the foreign judges nobody is saying these documents should be publicly disclosed and say instead we're saying the opposite what we're saying is that the foreign judges should be able to get these documents and be able to look at them and not have this protective order interfere with their getting the documents and so given that biomed and ask them are the companies that are oppos that allows those german edges to freely get the documents the burden we believe should be on them to show why and it doesn't matter alternately who owns the trade secrets and nobody is suggesting that the documents be publicly disclosed the point is does bio make it a unilateral veto when her re assess proposed all of ailill reasons all of able mechanisms to keep the documents confidential when we have at least a german judgment that these are races trade secrets several of the documents say on their face this is serious information and for a us allows these documents to be disclosed publicly they lose any trade secret protect in the various enforcement proceedings i understand i know you disagree with judge miller's assessment but it's really not at all clear to me why you think first is as we said applying the wrong burden but be that as it may the second error is that in the course of judge miller's analysis he never even referenced power after eleven of the protective order paragraph eleven provides a specific mechanism for either party to challenge the way specific documents work particular procedures under the protective order have been instituted and in failing to cite paragraph eleven in  factor test from the melodic case that the judge employ that directly affects three of the factors the nature of the protective order foreseeability and reliance paragraph eleven provides of the parties can do exactly what a race is doing here and judge miller entirely ignored that and then with regard to the fourth factor good cause can't you tell if you can even think that he he he was very concerned as to whether he had the power to  parts of these documents may contain jury secret information that you know belongs to her a s in me as a german court can do did but i'm not that that would justify treating the documents themselves as belonging to her anus and it seems more like an substantive determination as to who owns the information and that to me at this point you know i have an open mind i do but that to me at this point looks like a matter beyond the determination on this point should be controlling in the united states it's so so your honor a couple of things here the first as i think the most important is when you look at the actual record right it is only her right yes that is supported its argument that it has a confidentiality interest her a are submitted multiple declarations establishing an interest beyond the face of the documents themselves biomet and ask him have submitted no evidence not a simple back aeration nothing supporting any confidentiality interest they have in these documents and but for the information that on its face is psoriasis we argue district court that the other information that's in there is either not sensitive business information is stale because it's old and relates to products no longer on the market or with limited exceptions or a has claim that they are trade secrets and know how to run the documents but those provisions have been redacted and so there is no when you look at the record you have all of this evidence showing that harasses a confidentiality interest and no evidence from biomet and ask  saying that they have a confidentiality interest in these circumstances of the certainly believe that buying that and asked them or not in fact deliberately interfering with your efforts to use the cited documents in the enforcement proceedings let me tell you my bottom line worry mr is my bottom line worry is that it's very hard for for me to avoid the inference is trying to resolve the dispute in foreign courts by obtaining a ruling in its favor here in the united states here in our court and  doing but when you look back at the purposes of seventeen eighty two one of the reasons that documents should be provided from the u s is so that you don't have a party that has to go to thirty different jurisdictions around the world to get information that's located in one jurisdiction and likewise under the federal rules of evidence the district court has the ability to control the discovery in its courtroom all memorial hospital from this court makes that perfectly clear and there are plenty of of garden variety cases where district courts prevent documents produced in discovery from being disclosed publicly for example in employment cases personnel files are produced all the time from employers and judges often implement protective orders that say none of the information in the personnel file will be publicly disclosed or misused by either party you don't need to resolve a foreign place to get to that and my point about that there really is no reason this court needs to get into the substantive trade secret determination when you look at simply the record in this case our record where herrera's has amply justified its confidentiality interest versus a record man and ask him have shown no confidentiality interest that's really the key issue here and so i don't think i understand the court's concern but i don't think it's dispositive here because this is a case where you have a particular record now it's true judge miller didn't make a finding that biomed deliberately impeded this but i don't think such a finding is necessary what happened is undisputed right that the laser undisputed and in light of happened a few weeks ago i understand in france their record should you be arguing well it just happened all i said officer of the court i'm telling you this is a fact that just happened but i just one use it as an example german counsel is here and told us this last night that that in france which is a country that wasn't at issue here but it's going to be an issue in the future on these on these on these concerns herrera's filed a claim with biomet and deliver is now arguing apparently in france that by delivering eight claim that included confidential information stamped confidential all over it or re assess now relinquished its trade secrets quote publicly disclosing the document by filing it one by omits facility i mean so yes there's not a finding in the record of intentional obstruction but the point is there are these delays and in light of these delays whether intentional or not there needs to be in our viewer remedy here and it's a very simple we're not asking for a wholesale modification of anything we're just asking for these nine documents allow her radius to submit them without a veto by b agree that it will not publicly disclose the documents right and they were the ones who initially claimed them as confidential here in the united states right that's undisputed that's in the record by him it has not has not disputed this i don't believe even if they have it's clearly on the record that but they have refused to agree not to publicly disclose the documents their position has been no restrictions on biomet whatsoever and that has made it impossible to move these cases in the foreign jurisdictions that's the critical problem i understand the court's concern i cannot emphasize enough the court does not need to make a trade secret ruling in this case all the court needs to do is weigh the evidence in the record case when there were no further contemplated proceedings in the district court in the first order in two thousand and fifteen judge miller granted some of the relief that we sought and then directed the parties to work on a new protective order that implemented his opinion there was clearly additional proceedings going on in the district court and then with respect to the january two thousand and seventeen order the court said look under paragraph five of the protective order i'm not bringing the relief but i think you should have l yourselves  paragraph six of the protective order and seek the relief that way and so we did exactly that and then in the third order judge miller denied relief under the six power of the protective order and so in each of the first two instances there were proceedings not just contemplated but one going in the district court and we didn't believe that they were appealable at that time and moreover appealing each of those decisions would just have led to piecemeal appeals piecemeal litigation where now we have a final order that includes these issues year that the german court found that the documents belong to her a it's rather than to have the only thing the german court found was that information in the documents where  i think that's a difficult question because of the word and i think that the german court was not asked to these documents belong to harass or biomet and all the german court with the german court ruled was that information in these documents was for a us information so i'm not i'm not saying that there was a finding out there that this court has to adopt about the ownership of the documents what i'm saying is that it's a prime official matter the german court's ruling shows that or a us has a very substantial confidentiality interest in these may please the court i'd like to begin by raising three overarching points the first one is that the underlying action is a discreet proceeding wrought pursuant to twenty eight united states code seven hundred eighty two which courageous used to attack a attempt to obtain discovery originally for use in a particular german proceeding then subsequently for use in nine proceedings pending overseas there are absolutely no substantive merit based claims pending in the court below instead all harasses merit based trade secret claims are being vigorously litigated in those nine overseas actions and in a lawsuit that her is filed against ask them in the united states district court for the eastern district of pennsylvania in forgive me but what's what's the difference between the case here and and the case the two cases in pennsylvania i'm sorry your honor when you say the case here are you it indeed i don't know what i'm referring to well let me let me let me try to explain and give a general answer to your question if you step back and look at what's really at issue in these cases harasses sued and if you exclude germany for and out as it has filed lawsuits against by omitting and or various biomet related entities in nine european countries harass his purported trade secrets for the development of bone cement including the development of the co polymers and then either directly used or did a wink wink nod nod at using that information to guide ask in its development of the coat polymers that were then used to make the bone cemented issue so while the claims are proceeding under the the local laws of each jurisdiction that's the factual basis essentially for for  i believe it very likely will and here's what if you look at the relief that her a f sought in its third motion to modify and as we said in our briefs and i may get a chance to talk about today we believe that is the only order properly before this court because of jurisdictional problems were harassed either waived issues or didn't file a timely notice of appeal and that third motion sought extremely narrow relief it s to impose restrictions on biomet use of its own business documents documents that existed before any of this litigation began and which contained biomet own confidential information and that relief if the court looks at prey asus third motion the actual motion and the letters that were attached as exhibits were counsel specifically explained that one of the reasons that the restrictions on bio mix use are necessary is because her race is concerned it is going to use that information to develop new bone subjects and i remember in the court below explaining to judge miller that you harasses also sought injunctive relief in the overseas proceedings and this is what led judge miller i believe to have great concern about the relief harass was requesting as he mentioned in this opinion had he granted the motion it would have affectively mooted an appeal biomet had pending in belgium and would've interfered with the decision the norwegian court was going to make on this issue of confidentiality and how the documents the eastern just to pennsylvania and ask for such relief they may not get it but they can ask in those courts where there are actual merits claims pending can review those claims and then based on a full and proper record render a decision but i respectfully submit it would be completely improper to do so in the context of seven hundred eighty two proceeding because there are no underlying merits plan the parties are litigating the issue of a trade secret there's been no evidence presented to the district court this is a mere discovery action so again if the radius wants to argue these points it can do so in the cases where there are substantive claims pending and turning back to the point i was making that it is irrefutable that in the nine foreign jurisdictions has not object and i want to be crystal clear about this violent has not objected to her reyes's use of the cited documents in those proceedings provided that the very limited confidentially set confidentiality safeguards to which courageous itself agreed are in place biomet submitted detailed declarations pleading from the foreign courts in response to her race a second motion to compel outlining all of what was going on in the four courts in explaining that the dispute the delays the setter of the council brought up have nothing to do with involved in the foreign litigation so i'm sure you can ask ms platt but because i ask him isn't involved i don't know if they have a position on use overseas but with respect to biomet we have never objected in judge miller looking at this wealth of evidence declarations foreign pleadings came to the conclusion that biomet and ask him to the extent to could do so isn't interfering with the use of those documents and as you pointed you honor there's been i would say not even a legitimate attempt to show how that was clear air counsel may disagree with the decision but as the appellant the obligation is to not only show the court that the decision was wrong but that was clear air and that's a high burden and i would submit it wasn't it didn't even come close to to meeting that burden here if i could i'd like to turn to the question of what issue are up for what order is properly before the court because i think this is a very important issue counsel's argument and certainly to a much greater extent her race is brief is based on the premise that the district court's ruling and harasses first second and third motions to modify the protective order are out of here that's incorrect the only order that is properly before this court is the district court's ruling on the third motion a modified let's turn first second to the government doesn't do moot the concerns about the if you look at the motion the letters and particularly the hearing transcript the third motion was far narrower harass limited the type of relief that was seeking in it limited the basis for that really and here's  specifically in the third motion the only relief for a sought subs and relief was for the court to impose restrictions on biome its use of its own business documents in the third motion you know you get a look at the hearing transcript the motions the letters for reyes it's was not seeking as it did in the first motion and the second motion to exclude the cited documents from the protective orders wholesale and it no longer was rely on any type of argument that this is her race is confidential information courageous owns the information the only relief sought again was to impose restrictions and buy up and equally as important if not more important was the basis for the third option it was limited to her raises argument that in the less than one month period of time before the court's ruling on the second motion and the time when harassed filed its third motion there were changed circumstances that would warrant good cause for modify the protective order and if you look at the articulated change circumstances it referred to the situation and belgium in norway specifically courageous argued that the appeal in belgium was still pending in causing delays will that appeal was present when harassed filed the second motion and was briefed and argued as part of the second motion with respect to norway again in the second motion harassed raised its complaints about her a it sorry about biomet not agreeing to restrictions on the use of its own documents so that too was litigated enter into your argument i'm like i couldn't agree more your honor i was responding to the question of whether the third motion encompasses all the prior issues and because it was raising much narrower  relief in much narrower bases i believe the answer that question is no into your answer your question the fact that you don't file a timely notice of appeal in my opinion that should be game over with respect to the first and second motions they didn't come close immediately immediate appeal from both or else it just chose not to do so and with respect to the first motion i think it's interesting to point out rather than appealing and had they appealed the first motion all these issues would have been before the court and could have been resolved way back then but instead of doing so they negotiated agree to and asked the district court to enter the eighth the manager protective order which contains the very same provisions about which you complain previously specifically in its firm's motion wine to exclude the nine sided documents wholesale on the eighth a minute protective order they agreed to restrictions on their use of the cited documents so you have a situation where besides not filing a timely notice of appeal i would submit that by entering voluntarily into the ate them in a protective order grace is waived any right to complain about these issues it had a chance to appeal it shows not to and they can't raise these issues now it raises an issue of fairness also because rather than appealing they think raising gaged in negotiations with  ask him gave up certain positions in order to foster what would be a workable compromise so to now allow harass so many months later to try to rewind the clock and raise arguments and issues that they've abandoned and which form part of the negotiations isn't fair i see i'm running out of time and all i would say is i respectfully submit given the standard of review here abuse of discretion that her radius has not come close to clear that high bar of showing an abuse of discretion grace is able to use the cited documents violent ask him receive protections for their confidential information protective orders are working thank you you there is some overlap between the cases here and the case in the eastern district of pennsylvania in two thousand and nine her re is sort documents from a scam pursuant to a seventeen eighty two subpoena issued by the eastern district  pennsylvania s can produce many of the documents that biomed produced in its seven hundred eighty two proceeding here including one of the cited documents and portions of two other of the cited documents subject to a protective order in the eastern district pennsylvania case s can then intervened in this case because it was concerned that it's done that information that belonged as came in the biomet documents would be used in europe pennsylvania and ask him produce five of the cited documents from its files and biomed produce all of the cited documents and many more in the eastern district of pennsylvania subject to a protective order in that case that protective order like the one in this case allows the producing party to me use their own documents without restrictions and re assess never asked to use any of the documents that were produced by ask him in the seven thousand nine hundred two case or and the misappropriation case that was filed later in your case they have only sought to use documents that are although the documents o the document that so the focus of the races attempts to use these documents in new york has always been in this in the northern district of indiana really is as was torment couric said whether there should be restrictions placed on by omits use of its own documents the harassers notice of change circumstances only myself that said they were not concerned at all about changing the restrictions on ask him that were in the protective order they were only concerned about changing the restrictions on biomet for this reason the court did not even consider the other requests that her a s s this court to consider on appeal namely to exclude the cited documents from the protective order to allow her writers unfettered discretion to use the site or documents in the european proceedings and to impose only and so it has really nothing to do with s cambs use of the documents either in the eastern from the eastern district of pennsylvania case or violent use of ask him documents in new york i am  limits consideration of this appeal to the march first two thousand and seventeen decision in the restrictions that the court refused to place on biomet and affirm that decision thank you thank you court what i think is most remarkable is not what my opponent said the what they didn't say number one neither of them mentioned a single declaration or piece of evidence in the record supporting their confidentiality arguments that the thing  as a three sentence general statement in a brief without any citation the second thing is mr cohran x said that biomet never opposed allowing the cited documents in provided it the restrictions of the protective were in place what he didn't do was refute my argument that every time this came up in jurisdictions where there were no confidentiality regimes and they had to negotiate this a new that biomet would not agree not to publicly disclose documents that was a huge sticking point and so in these negotiations at every turn heredia said well we have to have a regime and you guys have to agree that when we submit these documents to this court that doesn't allow you to say we publicly disclose them or allow you to publicly disclose them and they said no no restrictions on biomet are acceptable and that's where the impasse was created that's where the delay was created this is undisputed the only finding at issue that judge miller said is he didn't think it was a deliberate attempt to impede the proceedings it doesn't matter as a matter of law that delay that veto the way it's played out is a change circumstance changed circumstances they i'm sorry your honor what did you say thank you miller said a lot more than what you're giving him credit for judge miller said among other things among other things that the burden was on her a s  proceedings as to the confidentiality provisions that it was doubtful whether the court  at your arc everything he said boils down to three legal errors he improperly shifted the burden baxter should have been the test that applied he didn't talk about paragraph eleven at all of the protective order which is critical to his four factor determination and he simply made a legal error in saying that everything that happened didn't constitute a change circumstance i understand there's some underlying factual rulings there but our position is the ultimate determination of the changed circumstances at least a mixed question of fact and law and he got that wrong given everything that's in these declarations and given that it's undisputed that biomet would not agree in these foreign jurisdictions that it would not publicly disclose the documents that is a critical piece of this that really is undisputed i see my time is out if i could just have one minute maybe it would never have an additional minute ok thank you your honor i want to talk just for a second about your wrist action there is no question that in that third order we renewed our prior motion and when you look at judge miller's order he spends two pages discussing our motion to modify the protective order there's no question it all is in contest in the third not our position or our position is that in each of the two earlier orders there were still proceedings ongoing in the district court seventeen eighty two is a unique animal right it's only a discovery proceeding and so you can only  appeal all the proceedings in the district court or concluded as this court has said as other courts have said you there's no finale when there were still proceedings ongoing and in each after the first order and after the second order we were directed to engage in proceedings so we don't think we could have appeal but even if we could it was sort of a kin to a discretionary interlocutory appeal like going to qualified immunity decision or class certification that isn't waived if you don't raise it immediately  final ruling is the ruling we have here just one or two quick quick additional points ultimately this boils down to even you said your honor that this is a mess i agree overall all these cases are a bit of a mess but this court should clean up one critical part of that mess which is that this protective order isn't working we're asking for a very limited modification and biomet and ask him having justified opposing that modification the district court was concerned about a lot of things i don't gainsay his concerns the problem was the just report didn't apply the right standard didn't look at the actual provisions like paragraph eleven of the protective order that allow us to maintain this challenge and didn't give the appropriate legal significance to what was in the record that there were changed circumstances and that this limited modification was necessary for greatest to be able to pursue its rights in all of these jurisdictions  just essential that this court fix this particular i mean just if i may ask you one area that gives me some some pause mr rosenberg you have said in that array is his claim that to my responses well i think that finding is clearly erroneous in the court could so find i think more importantly the legal ruling of whether there is a change circumstance doesn't depend on this finding that it wasn't intentionally obstructing the point is the protective order and the way it was being used wasn't working and wasn't allowing these proceedings to proceed and i think that's the critical factor whether it was intent i read that finding a saying only that it wasn't an intentional obstruction not i think the court lays out for example that it's page two of the supplemental appendix where the court recounts the delays and the delays are undisputed and that's the that the problem is that delay as a matter of law should