and six that's aspirational ok and less you can control it yourself because sometimes i understand yes i did i make sure that the intervening patients have the opportunity and i did also want to reserve a couple minutes for rebuttal out of the guess out of the fourteen that i'm going to so now that the math is out of the way i'd like to begin by making three points one of which directly addresses the devoid test that the the court asked us to comment on first we need to make clear that the hundred thirty three patients is protected health information is at issue before this court our patience of the plaintiffs who had an initial consultation that happened to occur at the queen's medical center these patients information was exactly the information that queens obtained and identify during its what we have contended the unlawful investigation that occurred back in two thousand and eleven ok but where in your complaint can you point to provide a basis for the relief that you were seeking that was my concern with regard to the devotes case and i think the district court relied on that in denying injunctive relief and i'm going to jump right now into the devoiced test because we do think it is a helpful test as we read i mean essentially what i see here is a discovery dispute and those are not normally interlocutor orally appealable there's a couple scores that is a discovery dispute and that's before the whole a supreme court however the think it is solved and the device test is pretty clear in terms of setting forth that there needs to be a sufficiency of the relationship between the claim set forth in the injunction motion and the underlying claims that are down the line going to be a duty but the injunctive relief that you're seeking on behalf of the doctors is very different is it not i mean it's essentially we want to be reinstated to our privileges that queens so that we can continue to treat our patients who need the nuclear medicine facilities and so on that are only available there that's part of it the primary issue that we had was that the queen's medical center failed to apply the bylaws and there were two adverse outcomes that are ok but the injunction that we're we're now talking about is different you want an injunction that deals with improper disclosure of patient records under hipaa and perhaps under hawaii's right to privacy in its constitution and i'm having a hard time understanding why that is the same equitable relief that you were seeking when you file the complaint on behalf of the doctors to restore their privileges i think it is not the same equitable relief that we sought initially it's a part of our underlyin complaint that we're going to eventually present to a jury so yes we had to file a separate that would that would suggest ms conner's that that you're going to be seeking damages for the wrong full disclosure by queen of its patient medical records to the various people that you allege have improperly seen it even though they're covered by the protective order and i don't see a claim for damages in the complaint seeking a violation of hip a actually what we're seeking is to address the irreparable harm for which the very definition of a ripple harm there are no damages monetary damages and this court found that when it first and detained our motion for the original injunctive and i don't i don't know if we talking past one another or i'm just not getting any answer to my question but you understand what my problem is it's a different injunction that you're here on now than the one you originally asked the district court to enter and there is no underlying claim for relief in your complaint that seeks relief under hipaa and yet what you want is a hipaa injunction because queen's counsel wrongfully disclosed patient records and i just don't see the link between those two maybe i'm being blocked at it but i see this is perhaps counsel you might point to a specific allegation in the complaint upon which you relied might be that would be helpful and it is what we set forth itself so if we look at what we're concerned about the precise allegation in the complaint if you could point that to us that would be helpful sure and point to excerpts of record three thirty one because i'd like to make a primary point to paragraph thirty four the last full sentence where we say up to the set of bylaws for this correct because all of this emanates from the fact that the bylaws were not followed and part of what would have occurred had the bylaws been followed is there would have been confidentiality protections for the use of this protected health information in reading section thirty four of the complaint and i don't see any assertion there of patient records right what we are certain is that there were no will safeguards concerning the terminations the privileges part of the procedural safeguards would have been the confidentiality protection of these patient records but you didn't but you ask us to assume that right that there is no you're saying because you had these procedures established in the bylaws they would necessarily have had to provide the protections for the patients is that correct if they had followed the bylaws they would have a two things that occurred one would have been due process would have been afford hypocrite that would solve this whole problem well because we didn't think we needed to your honor because it was sufficiently related how we read the devoid test is not that it's a sufficiency of the pleading test but that it is a sufficiency of the relationship between the claims we are searching everything that has occurred now goes to count two goes to what happens when a medical center does not a for due process is there anywhere in my life is there anywhere in your complaint were it sets out what the provisions of the bylaws include with regard to patient confidentiality it does set forth in our complaint that they do provide certain procedural safeguards those procedural safeguards of can you point me to this can you point me to those allegations in the complainers is this the best you've got we've got the failure to follow count two so so this is it looking at thirty four and in the line down procedural safeguards that's what you're rely on that's part of it i'll also point the court to excerpts of record three thirty one where we talk about  as set forth have violated will continue violate plaintiff's rights due process of law guaranteed under the state of hawaii and in the first amendment that's also count one and it's because the due process provisions if the by laws have been followed what is said you're going to have an investigation ok queens has made allegations of conduct here and what that entails then is the initiation of an investigation pursuant to the bylaws and any information that queens believes is relevant including the protected health information of one hundred thirty three patients is going to be protected pursuant to the confidentiality protected you're asking i'm assuming that it seems like you're unable to point to a specific allegation in the complain that addresses the rights of these patients is that a fair statement that is the way we read the voice and we think the voice is not a sufficiency of the pleading test because again as we've submitted all of this is going to be evidence that we're going to submit in support of counts one counts two counts five and six but the way we read the voice is that it is a sufficiency of the relationship between what we've alleged in the injunction motion and a scenario like this where we have an underlying complaint and that's why deploys and the adoption of it would mature not i thought you told me earlier you're not seeking damages for monetary damages for the disclosure right you know we're seeking simply that there is a remedy to the violation which in part is recognized by hipaa but also as the district court found correctly in the first prong of which are is also protected under more stringent let's go back to the original complaint you originally complained that the doctor's privileges had been wrongfully terminated and that they were essentially being walked out of access to the only nuclear medicine operating room in hawaii and you're alleging essentially unfair competition that queens is essential trying to monopolize the market on these sorts of services why isn't this issue going to be adequately addressed in the same sions motion that is still pending in the district court awaiting the outcome of this appeal the court has found sanctionable conduct but has deferred ruling on what sanction to impose and presumably that issue is going to get determined once appealing why doesn't that adequately address what you're asking us to do with regard to the injunctive relief because it doesn't address to very very important issues that go to the repl harm it doesn't address the fact that there's this list which the district court found indisputably constitutes protected health information that it's secure but isn't files of attorneys around town isn't that already protected by the terms of the protective order that the district court had previously entered no it's not your honor because what we have here is when you get through the void we suggest that it's a relationship of the claims test when you get to the standing issues which we've argued then you get to the point that what applies here is what you law and the importance of that is that you need express consent to utilise protected health information in litigation and i point to the night the case so what you're asking us to do is to impose a complete bar like that that this information cannot be used in any way because it doesn't involve litigation involving the patients well we suggest that the protected identified health information that's been disclosed are limited not to the list which the court found was protected health information and also to the confidential history and physicals that information the identified information has to be returned because it nightfall you need express consent of a nonpartisan original that you still haven't convinced me that the that the current protective order that's in place is not adequate to address the disclosure problem that you're complaining about and it seems to me the question as to what's what form the sanction world which could at the extreme include exclusion of this evidence from whether or not we can actually disclose the records that have been requested because of the extensive review that queens is engaged in that is still pending that is the discovery of right and that will be won't that become an issue for the trial judge at some later point down the road when the parties see either side sixty use this information not entirely because what we've asked this court to address is the limited disclosure in this case of the list of excuse me the identified health information well let me come out of from a different way what is it that you want us to do what  relief are you asking the ninth circuit for we're asking that the list that constitutes they get a five health information that was disseminated be ordered retrieved and no further disclosures in violation of night will be made we ask that an accounting be made of who has seen this list who in hawaii has seen it who has seen the identified history and physicals that are sitting on the server of an economist there is no need for the defense wanted health and so you want to step into the discovery dispute and tell the district court how it's going to fashion the relief under the sanctions order which it has yet to articulate is that what you're asking us you know that's not what we're asking your honor not sure sounds like it let me see if i can clarify that i  it because i i share judgment concerns you mention of any go acknowledge that the pay since our not mentioned in the complaint what i'm struggling with them i think my colleague is is that what you're asking for seems to relate almost entirely to the patients and yet you've not admitted the allegations on behalf of the of the patients admittedly under the law you could and my colleague mentioned you could have amended the complaint and done that but it sounds like your concern legitimate though they are are really in the domain of the trial court and in the over the entry area we have to review what's before us and this is almost a new a new point you're not purporting to represent the people who have been wronged i'm just struggling with how we get there now you talked about the bylaws and you've talked due process and how inevitably this would have happened but in order for us to have interlocutory jurisdiction on this issue it's got to be got to sound in the complaint what what it brought up but i think my colleague and i are both struggling with how we get there right and i do understand that and first as to you know the doctors here have suffered an injury in fact and we said that in terms of this and as to what this court is addressing it is just what protected health information has been identified and utilized in this case it is not what it did no documents can now be produced all of that is absolutely still before and let's assume let's assume for a minute what they did was just awful it was a complete violation of hawaiian law and any number of things it was just really bad but you still have to have a nexus between that and what you're talking about your complaint is as has been indicated you have some doctors who believe they have been unfairly discriminated against in violation of law from being able to practice in at queen's that's one lawsuit that's the one that's the case in chief here but we've got this little  that sticking out here and it keeps changing shape and we need to tie it in some way to watch in the complaint are we not jurisdiction to hear it i don't think i think it is o hire for the information of both of you your side has four men and some eleven seconds left for your entire time thank you i want to address what six instructive because at the last paragraph of nineteen it says in making this decision to terminate plaintiffs privileges the board did not follow any of the constitutional legal or due process requirements provided for both c nine there is never was not and never has been a reasonable basis for suspending the hospital privileges of patient plaintiffs physicians cube see to standardize achieve improved clinical outcomes and hence patient satisfaction the issues and concerns were never raised or discussed with plaintiffs or with any of the cume see committees but you can counsel with respect it doesn't talk about the patients and if your clients yeah right answer your question because i heard them the patients have specific rights and accused by law agree to privacy had those privacy rights been followed the taliban or investigation which is what led to this is a pension of the physicians would never have been allowed to interview i understand that but there's a simple answer to the problem now that you've intervened and it hasn't been done ok then let me address devotes for a second because devote says that it has to be wholly unrelated and have nothing to do with the complaint all right you're here i'm here i represent the patients whose medical records i think you concede have been wrongfully x i'm not conceding anything at this point i'm trying to understand how i can square what i believe a lot of b with what the district court decided when it refused to grant the injunction that you thought and find and determine whether or not that constitute a legal error and i have yet to hear a persuasive argument from either one of you to convince me that judge kobayashi was wrong i understand and i'm trying to provide that persuasive argument your honor but the point is that the the patients could not have known about this disclosure of their information at the time the complaint was filed they only learned about it later the the a police have conceded that this information is central to their claims and their defenses they did that in their brief page nine and sixteen the the injunction sought the retrieval of this information it's been disseminated already and the remedy of the injunction thought the retrieval of this information was not granted you and that's squarely before you you agree that if we cannot find a  nexus between the patient's rights and what is alleged to taking into account what you and your co counsel has said about inevitable impact of the bylaws had they been followed you agree we don't have interlocutory jurisdiction to decide this question involving very similar circumstances and copies of been provided to the clerk two gentlemen were in a dispute over an l l c one access to confidential information of the other it had not been played in the interim complaint was not played until after the appeal and the court found after distinguishing deposed that it involved the context of the litigation and keeping the status of quote during the exercise record pigs sixty nine where when they were briefing this injunction motion before the district court and before they realized the trouble they would face of created by the devoted case they wrote quote the merits or lack of merit of the claims and the defenses of either party is not before the court in conjunction with the pulmonary injunction motion that they admitted there and everything you've heard since then is simply trying to obscure the fact that there is in fact no nexus at all between the route the claims they presented or the relief they sought in their complaint and the what they seek in this injunction what i read that essentially is being was look we're here on a discovery dispute we're not talking about the merits of our underlying claims and defen and that's why i asked your opposing counsel why isn't this just a discovery dispute over which the court of appeals lacks interlocutory jurisdiction and that's been our position since her beginning this is nothing more than  discovery dispute about the extent to which we can use queen's own information as a platform for pursuing the claims for unfair competition directed at their steering activities don't we we don't know the answer to that from the district court because the district court has yet to articulate what form of sanction it will impose for the violation that's exactly right so presumably that issue could come before us again perhaps it might have to await a final judgment in the case if but i you know for all the reasons that we don't permit interlocutory appeals why should we hear this one now we agree you shouldn't we that's why we asked for summary of firms and the appellate commissioner decided to defer to you when we shouldn't have but he did and so we're here i think sensually an ongoing discovery dispute and we're we don't know what the court is going to do because she has asked for guidance from the white supreme court it may or may not grant that that guidance when when that when that is known then they'll be further proceedings in front of both the district judge and the bad straight judge deciding what can be done with this information what can be done with the information we seek and discovery we're she's going to give it to it or not whether it's going to be did then a fight or not everything is in flux also i'm curious about the why supreme court matter what is before it which could have some impact on this case but she records in litigation where the patient is not a party those records are the same records were to be even talking about exactly so exactly so and so and that addresses both facets of the question because because what the  pellant's seek here is an order that restricts queens use of its own records as well as restricting queens access to the records that are held by the cancer center you agree counsel that i'm not saying you would want that but do you agree that as a matter of law that the district court and a sanctions order if if she concluded that you had in fact violated in the proceedings below the judge kobayashi his administrative leave closed the case she's vacated the trial date all waiting further guidance from the supreme court which may or may not give it frankly because they've said they'll take briefing but they haven't decided whether they're going to answer the sort of questions and then one sol that develops then we'll go back to the court and she'll decide what she's going to allow us to look at we diminish him she administrative we close the case yes sure that's a customarily done in this district when there is a something that's going to cause a long hiatus we're over nothing she doesn't enter a long stave it doesn't enter a long stay i think it has something to do with keeping statistics  early in the case in february two thousand and twelve there is a version of the chart the portion of the tell a very hard wish which lists patients by number describes their diagnosis their insurance status there's a code etc etc but the plaintiffs have known and the patient who originally sought to intervene knew the queens had this information it was using it it was using it got only for administrative decision because under hipaa it's entitle to use information for health care planning and that includes business purposes as well as the discovery o fraud and abuse and they didn't do anything they didn't amend the complaint they didn't supplement the complaint they've done nothing if you understand correctly that the hospitals use internally these records your clients use of those records to make a determination if you speak to the doctors is not what's at issue here is the publication if you will of these records in the court files that made them public is that that the real issue here or well i'm not saying well i know the plaintiff would like to bar the use of the your internal investigation if you will that lead to the termination but as a practical matter speaking on behalf of the patients i gather there's no objection to the hospitals having the record no objection to their hospital being able to examine the records it's the publication that's the big falling in the proverbial forest but i think if you look at the relief they requested in in there the injunction and the subsequent intervention were mirrors mirrors that what they're asking for is an embargo on any use by anybody including queens of this information for any purpose and that's a question too that's been certified to the wise supreme court and that's it amiss whether it's even permissible to use these records in non concept of dhea deaf occasion is somewhat hard to understand in that context here we have one hundred thirty two patients we are not seeking do not want do not need we'll  fireball information in the course of presenting our claims or our defenses at trial or in the motions leading up to the trial we are we are content with the identify information that describes a very limited subset of the what's in or includes a very limited subset of what's in the records held by the cancer's but it is possible that the why supreme court will see even for that purpose you can it's possible that they could say that where the plaintiff did amend their complaint and and having a method the complaint the appellate court several this has the nexus and so i think you know the questions you ask about that that