you basically know our procedure and we're kind of legs in the sense that we let you go beyond but not forever so make your points and move on from those that have possession custody or control them pursuant to her investigation of either a civil or a criminal violation of the act section seven point two was intended by the general assembly your honour's to give the attorney general very powers to obtain documents in her investigative function there's nothing to suggest that the subpoenas that were issued by the attorney general in this case should have been question by the trial court the case should be reversed regardless of whether  white the white case well your honor i don't think there's any precedent for saying these documents are touchable in fact i think it's exactly the opposite the case law suggests for example in the federal litigation involving the justice department that these attorneys these documents are actually subject to proceed per subject to subpoena as a person a rule in the ninth circuit that was what came out of the appeals process there into the ninth circuit and then  or white case filed it and circulation the u s supreme court which was denied so at least in the ny circuit where this case arises from there's no doubt that a lawful subpoena will trump the protective order that my opponents rely on the question really comes down to whether this is a lawful subpoena and the powers of the attorney general under section seven point to at least that's my contention om and i said there's nothing in the filter tech to order here that would suggest the trial court's interpretation was correct the purposes of the protective order are set out in section one of the protective order which is attached as an exhibit in my appendix and that the provisions of that document are designed to assure that the federal litigation does not subject to companies who tendered documents to the choroid arm causes those companies that tender documents to have those documents that may contain trade secrets or other in the terms of  effect what are competitively sensitive information from being disclosed either to each other or to the public because that would put their businesses at a competitive disadvantage that concern is simply not at stake when the attorney general  i think is exactly the same in the federal courts at least with regard to the question of possession custody or control so the federal courts of have done the analysis and come to the conclusion that that these documents simply because they're brought in to california and then become law because their clients are subject to the subpoena that we have all authorized if relates to the protective order doesn't control at all if this is subpoena that was issued by the attorney general's office in this case is considered a lawful subpoena which i'm urging the court should should find it is a lawful state subpoena because we have jurisdiction over a new america and a market has control of these documents they have control because even under the protective agreement there are ceiling party these documents they're defined that way as a receiving party they have to store these documents that's their obligation not the obligation of their lawyers now they can ask their lawyers to do it but it's their obligation they have to maintain them they have to limit access to these documents that's under s n seven of the protective order they're able to show these documents to experts and there and other outside counsel they can rely on these to the judgment of those people when they litigate and they must in the end destroy this material that's not an obligation of their chinese that's their obligation all of these things give them such a connection to these documents as i would suggest that they have control of them and if they have control of them i think logical follows that they have an obligation to turn them over to the attorney general so you would let a state court supersede a federal court and sealed documents you would not require the and that he said she is you to go back before the federal court to try to get them on seal ceiling issue was raised by the parties will your honor it was not a basis for the circuit court's decision the parties on appeal have argued that your honor should adopt that argument they can certainly do it it's nice to be an apple leave can raise any argument you want to from the judgment i don't have that benefit they do but the argument is what is because there's no less rather the order sealing the documents is an order by the court to its clerk not to release the documents to the public or to anyone else and we're not seeking that those documents be released to the public or even to us those sealed documents should say stay sealed in the district court out in california we're asking one of the parties that has them yet in their possession to turn them over directly to us so the ceiling  doesn't really apply at all and that's the argument that we made below in the trial court i think that's the argument couldn't say it was adopting that but i think that's the argument that the court gave merits and didn't rely on the c e o as as a basis  produce the tax records said you know i just don't have them maybe my ex wife has them i'm not sure it's not my fault if i don't have them but i don't turn them over and the court said no you have a statutory right to get these documents from from the government the  requests for documents therefore put makes it within your power to produce them and therefore you should be required to produce them in france and they were architectural plans a former architect they weren't as current architect again the quote looked at that looked at the issue and said you know if it was your former architect you can go back and ask your former architect to produce the plans they're within your power to produce and therefore we think it's fair for you to have to produce them franzen is interesting because at one point the court says that the question of whether the issue  against the owner or against a third party bus would merely is in such a situation merely one of procedural choice and convenience so we've been to you know the arguments been made that we should have gone after perhaps the attorneys here as opposed  to america but it's really not a question of it's a question of power and both the attorneys have the power to produce it and the clients of the power to produce it if if this appeal is lawfully issued against the client then that shouldn't stop the court from finding that there's the control necessary for the court to to enter this is to order the subpoena be enforced i'm trolly which is an illinois supreme court case the early seventies talks about what happens if we don't follow that rule that it's practical power that matters not not physical possession for example if it's not a practical rule what happens is parties can say well i'm i'm leaving one tourney to be in charge of this another tourney that my count has those records and they don't know what's going on with each other and if you don't serve the right party i guess you're just going to have to go without the go without the information in that case the litigant had two lawyers and one way didn't have the information that the that the plaintiff was trying to get the plaintif investigation is ongoing essentially what we're talking about is obtaining discovery outside the four corners of discovery we would suggest to the court that there is a profound question here about whether there's even a controversy right for resolution  any more to developments in the court since this order was entered number one the underlying action has now been stated twice first in november and the stay was continued only about a week and a half ago  lower court judge palmer and a protective order which closely mimics the provisions of the federal protective order but the important point is that the attorney general is able to get these documents pursuant to the subpoena rather than an ordinary discovery when the underlying action finally gets going it's very general we'll have caught most not true but they need outside the four corners of that protective order only the defendants will then be subject to it honest on the subject of comedy which was an independent epic grounds for the order below the attorney general goes so far as to say in the opening break that there's actually only one issue here possession custody  control that the district court judge will stem cell ruling on the motion for clarification somehow wiped out the entire issue of comedy well the problem with that argument your honor is they brought that exact argument on the motion to reconsider shit the trial for and front of justice abstain and they lost justice epstein refused to revisit his order on those grounds well the attorney general says nothing about why that may have been an abus discretion they simply parrot the same argument so our position is any challenge to comedy has been waived here but even if that weren't so the attorney general suggest that what judge elston said was essentially she didn't care if these documents were produced here that's not what she said at all what she in fact said was that the course of action that we've taken a you will america was exactly what she expected and that this was up for the illinois up to the illinois courts to decide one way or the other i probe to the extent that any person who wishes to challenge any aspect of a subpoena including the question of whether the party has control over the relevant documents section eight of the stipulated protective order provides that the parties shall do so in the issuing corps and other words exactly what we've done here she simply says the court simply said it was not going to get involved one way or the other but the comedy issue remains highly relevant because of the provisions of section seven point two of illinois a trust back whether or not this subpoena is ultimately enforced under section seven point two if the attorney general gets these documents the attorney general can share them with any attorney state attorney general in the country now that's true under the a trust that it is not true under the protective order that's been issued in the in the lower court action so that's a crucial change and the concern with court supervision that judge alston expressed in order will be completely gone because then bail these documents will be disseminated pursuant to the order of courts around the country documents it takes general to suit every party involved and the attorney general has the ability to seek those documents i was playing i was about to may seek those documents directly from the people who own the documents so the argument that this is the only way that some public policy will be will be frustrated if this route is flop holds no water because the attorney general should be seeking them directly from the people who own the documents not from a single party who happen of deference to the federal court would dictate that they take the weight of seeking those documents directly from the companies that own them bad of them for much so my response would be no under these circumstances they don't have that right counsel for the of the companies in that matter and eric two crucial distinction so that the attorney general is ignoring and arguing that this head that that case has something to do with the possession custody or control number one it was  subpoena of a federal criminal grand jury and the public policy involved in a federal criminal investigation is certainly stronger than that involved in a state civil and at best a geisha number two far more important absolutely nothing to do with the a fear of whether a your way has possession or control beast documents it turns cheryl essentially argues two standards here if you're a general says well the standard should be whether the party has the legal right epstein made about the stringent restrictions on dissemination we would suggest are far from being clearly clearly erroneous they're clearly correct so even under the standard legal right to obtain these about parties artfully directing their own documents to their your lawyers essentially you can't go wrong material in the files of your lawyers well your honor first of all the protective order in federal court expressly breaks that relationship for purposes of this case as i said i'm not allowed to share these documents with my client so they can direct me to to show those documents otherwise i'm held in contempt money and furthermore none of the documents we're talking about belong to so there is no issue here artfully directing your own documents to hide something to the files of your below and yet when the again the attorney general's papers below they raised no argument that was specific to those sealed pleadings although we pointed out the omission and they raise no argument here we believe any  challenge to that aspect of the order below has been away your honour's and i believe the time for this controversy has long since passed now that we're in litigation below the circuit court acted well with it within its discretion and we would ask that the court affirmed the order in all respects i think your honors this is a completely new argument that my opponent has just raised that this is a controversy that's not right for resolution because of the subsequent procedures that have happened in the in the courts below and i'd ask the court for leave to to brief the question if they your honour's are interested in pursuing the question of the case may be moot because of the ongoing litigation talk position the case is not moot if it is moot that the public interest exception in the case involving the attorney general subpoena power ought to give your  respond with regard to the argument that we might share them with other law enforcement again that's an argument that i'm hearing for the first time here if it if that judge epstein had entered an order saying we were not able to share it with the bomb foresman that would prepare have said that have made the issue right but i don't think it is right for this courtroom you the statute itself sets the terms of what the attorney general should do with regard to documents in the sharing of those documents of law enforcement and we have the right to share them if that is correct other law enforcement agencies but if the if that's their argument then the subpoena should have issued with a protective order we cooked with regard to that issue it didn't the judge simply said that there wasn't control and dismissed the not covered by this agreement when my opponent says that he could be held in contempt he is correct if that agreement were interpret the way he thinks that agreement should be interpreted but he's not interpreting that agreement correctly that's why i argue that this case really is a case  of requiring the noble review because what we're doing is we're looking at this federal protective order and reading it and saying does the other side have an obligation not to disclose it's my position that they do not have that obligation and that they must disclose just as they disclosed to the justice department it's my understanding also that with regard to non objecting parties the attorney the attorneys for a new america have to in fact disclose these documents so so they have control of the stock and sufficient to disclose them if they're allowed to disclose them is my point and my arguments again that the protective order here doesn't provide for them to not disclose them argued to the court comedy is wrong and the judge said and i put aside comedy let's get to the meat of this let's talk about control that's that's included in the appendix to my brief where the where the court said that he even put aside komi as a basis for his own ruling and then ruled that there wasn't custody in control so that's why the issue is but again it's going to be unhappily they can bring that up if they want but it's pretty clear the judge epstein wasn't basing his ultimate decision after the hearing on the on the comedy issue he was basing on control and control is a legal question what does that mean control in illinois under our statute and then of course interpretation of that protective order is also a legal question your honor should read section eight it's three short paragraphs of your honor's i think in the end of my argue it's going to be the same regardless of what standard it is i think it is a legal question it could be an application of lot of fact i don't see how it can be factual since the question is what is the meaning of the word control of the statute  what is the meaning of section eight of a protective order that's filed in federal court those seem like legal questions but under any standard it's my view that the trial court in this case a committed legal or in the case should be reversed judge it seemed did though say that issue to bad because the the ninth circuit in a very short decision maybe two to page that most said that the per se rule in the eye circuit is that protective orders fall when a party is faced with a