the next case on for argument is greenberg versus u s department of justice if you do we'll give you a bill or enough good morning mr abrams good morning and this please the on this honorable court this appeal raises two primary issues the first issue is whether documents subpoenaed by the prosecution pursuant to a grand jury investigation are categorically exempt from the foyer production and otherwise legitimate for oil production when there has been no showing that the scholars or of the documents would tend to reveal any grand jury secrets and there has been no showing that any of the documents actually made its way into the grand jury room oh you're probably not aware you're too young but back in the old days when several of us were practicing that challenging the grand jury process was dury grrr by defense counsel sort of during the investor who was doing the investigation with the u s attorney's office were presented back to the grand jury always as a matter of course to avoid these sort of side attacks on abuse of the grand jury process so do you have any evidence that this wasn't returned to the grand jury in an appropriate form or that the grand jury authorized the agent who served the subpoena to receive the documents on its behalf which essentially i would say i don't know i'm not speaking for my colleagues as as a mechanism that the grand jury approved for receiving these materials no i mean i  documents are produced in front of a grand jury doesn't that in and of itself disclose in some way however small what it is that the grand jury is working and if that's even a question that we address in these t when we're told through you can argue about whether the disclosure of the government's disclosure was adequate in response to your requests when we were told these are grand jury materials well no i don't think so because even though they were subpoenaed by the prosecution there's no evidence that the grand jury itself actually got the documents subpoenas can be very broad in nature and they can they can yield boxes and boxes of doc documents and you know how many documents actually make it to the grand jury room one answer is all of them because very often the boxes are brought to the grand jury room but going back  step before the point is the grand jury subpoena them to subpoena is issued in the name of the grand jury so the very fact that these documents are in the possession of the government now as a result of the grand jury subpoenas will disclose the disclosure of what they subpoenaed tells you what the grand jury was looking at i respectfully disagree with that i think if you look at judge woods decision in the manco case if you look at united states versus philips in the eleventh circuit the mere fact that a document is subpoenaed by the grand jury does not put that put that document in to the protection of rule six  in the mere fact that a document dissipate has been subpoenaed by a grand jury does not exempt it from disclosure when the subpoena is addressed for example when the foyer request goes to some other agency that has those documents or something like that but here as i understand it the for your request is essentially for the documents that came to the grand jury right and that's what the that's what you're asking for well that's that's part of what we're asking for were asking for bank records as well regardless of how the government received those records so it's not just the grand job the bank records came from the mutual legal assistance treaty as i understand the government's i thought that's what they were relying on right on my point when you're asking for really jury is what that the b p documents i thought well that we're asking for two different things we asked for bank records we didn't ask for swiss bank records we asked for bank records they may be bank records they may be nonce west bank records but we asked for bank records and it's unclear from the record whether all of the bank records are from switzerland or whether some of those bank records may have been found by th but that's that's the circularity of it we know there was a subpoena that has become public now you say show us what you got with your subpoena right and that's what's disclosing the the grand jury's investigation isn't it  we don't believe because ultimately the prosecutor is going to show the grand jury a small subset of those documents there's been no evidence that the grand jury had free access to these documents or that they reviewed that they reviewed any of the documents if some of the documents have grand jury stickers there may very well be a basis to say hey we're not going to you know we're not the documents are only in the government's possession by virtue of the grand jury having ordered somebody or some entity to produce them period end of story the government to can't just go out with respect to documents subpoenaed by the grand jury the government can't just go out and grab them when they could use a search warrant we'd be having a different conversation they could use an administrative want perhaps we'd be having a different conversation but when they are produced pursuant to the grand jury my view we can have arguments and they will be for the discussion and some written opinion about this when they're produced by pursuant to a grand jury subpoena know whether they are actually brought in as boxes or whether the grand jury has authorized the agent to pick them up and do in front of the grand jury ok and you have case law that says that's wrong well i think the phillips case i think the banco case and i frankly i think that the interstate tress case sect that this court case hundred sixty it says it has it has to make it to the grand jury room and there's been no showing i will tell you every day this is totally ex to record every document that i subpoenaed after grand jury  attacked were brought into the grand jury in a box and the grand jury was told these are the documents i did not put a label on everyone i got the grand jury's authorization to go and give them to an agent and then we brought back other documents for them to consider at some later point in time but there's no there's no evidence that that happened here i i i can't i can't speak to anything other than a rat here a de facto or de jury isis's suggest that that may be a problem what's stopping you from going to the s is not the answer to what it is you want to get all that there's certainly a pursuit there is certainly a proceeding where that may be happening but doesn't your case law tell you that the entity that whom you are subpoenaing for those documents are seeking to get production of those documents from can't say when we produce these in front of the grand jury therefore we don't have to produce well you're preaching to the choir on that one thank you judge maybe we'll see you again he reserves in time for  morning may it please the court my name is emily brett's i represent the united states department of justice as plaintiffs counsel counsel mentioned we are here because of two categories of documents documents that were obtained via grand jury subpoena and documents that were obtained did not want to produce and they were concerned about the secrecy concerns based on the swiss production of documents when they came together via switzerland under the am lot there was concern that they might be reveal and reveal their contents which are protected by the  in the declaration in the for decoration we represent the exact contents of the letters that are typically transmitted when when switzerland sends materials to the united states and a representation in the hodge declaration that those letters were found in this case it's a little awkward because it was sort of have to take the word of the person in the declaration of what the letters in the letters actually exist understanding that the letters might contain some sensitive information one wonders why they they couldn't be redacted to eliminate the sensitive information but the expectations about confidence for then she ality which is not a secret that that could be presumably laid out before us and i understand it's laid out in the declaration but generally speaking when there's a document that contains  the language that's an issue we get to see the document we don't have to take someone's word for what's in the documents so it creates some awkwardness and it seems to me it is you know with the issue about sensitivity of information in the cover letters find the sensitive information could be redacted the language about we expect confidentiality that's not sensitive a secret and we could see that rather than having to rely on a it i can continue to talk about the m r i materials if you prefer go back to that printer materials but with respect to the materials sticking with those for a moment we do believe that they qualify under exemption three as a treaty at the status of  statutory law and this qualifies under exemption three and also qualifies as a withholding statute it identifies particular criteria for withholding and matters to be withheld with respect to those particular matters those are identified in article five and article fifteen which set forth the limitations on the use of the information as well as the confidentiality that is understood when the swiss transmit documents to the united states and vice versa that confidentiality assumption is also the underpinning for argument with regard to seventy which switzerland's a confidential source and again even though the identity of switzerland is known that does not render the documents themselves to not be confidential they were provided with the understanding they would only be used for the specific law enforcement purpose for which they were provided and that they re kept confidential that's also underscored going back to exemption three and i apologize the archives to dovetail a bit but with regards exemption three those cover letters that such occurred if you mentioned they do indicate that disclosure is only for the purpose of article five for that specific law enforcement purpose and that disclosure under f and turning back to the grand jury materials we believe that rule sixty the underpinnings of the rule or to protect the secrecy of the grand jury that's both to shield the investigation as well as information about the strategy and direction of the investigation here specifically records that were subpoenaed by the grand jury those in and of themselves reveal by virtue of the fact that they were subpoenaed by the grand jury reveal the nature and direction regardless of your only authority for getting those materials is the grand jurors correct in in this court's other decisions interstate delay oh and john doe there was an independent legal right of access and the documents existed in the government's possession kumble is separate and apart from the grand jury investigation here the only reason grand jury rule sixty as a reason for not schools i'm sorry so so in those cases you couldn't interpose rule reason correct and as an interstate on the other subsequent cases upheld repeatedly that you either need consent from the documents owner the owner of the documents is the one who holds the legal rights to the documents and in this case the legal right of the document owner is b p you either need that or a court order and that would be to consider make the considerations and rule sixty known to the court point the swiss amla has a has article fifteen which calls for secrecy in certain specified places but only if the requested state here switzerland makes their request to paragraph two of article ten up time doesn't permit me to go into that but there is no indication even if we take the double hearsay declaration of what these transmetal letters say there's no indication that the swiss requests for confidentiality were pursuant to paragraph two of article ten and on the seven day argument concerning confidential source the campbell case which is in our brief says that the government has to show that there was either an explicit promise of confidential treatment or an implied promise the explicit fails because the government says they're relying on an implicit understanding and the implicit fails simply because they didn't follow the animal that the enlighten made it very clear how the swiss could make an application for confidential treatment there's no evidence that that happened here and for that reason the exemption based on the swiss and lot does not does not apply and the this court should reverse on that basis alone i had a question about article ten paragraph two of my question is is there any evidence in the record regarding whether the request the documents quote a fact a person who according to the request appears not to be connected in any way with the offense which is the basis of that request i'm quoting that language from article ten paragraph two your honor there's no evidence whatsoever and that's part that's part of the problem there's no evidence in the record  that that speaks to that issue thank you thank you both will reserve decision in this case