first with the appeal ability that in this case comes up in a slightly different posture and we attempted to at least alert you to one difference that we saw in our order doesn't make any difference to the appeal ability of the collateral order doctrine that you filed a motion for reconsideration that was in fact still pending in the district court at the time had an appeal pending here and that you sought to introduce a lot of documents in this court you could also start so that you have the benefit of her entire analysis on all the record including the documents submitted a motion for reconsideration it is as final as it's going to get in front of this record she's considered everything she's given us her views on everything there is nothing  hope she would change her mind that's why we filed a motion that we did it and she looked at me now all i can tell your honor is that we we've put before her the same evidence i mean the same kinds of arguments that we're making before this court and she said you have my views i'm not changing my mind so i think you know for purposes of the finality analysis under own that decision is final and it's not as if the motion for reconsideration would change her views because she has done that analysis and given you three and a half pages of reasoning as to why she doesn't think that changes anything now because because the other side didn't raise this question and because i guess the supreme court has now told us that these rules aren't jurisdictional in the first place have they forfeited any objection and we should just shrug our shoulders and go on anyway to understand the question and i meant i'm not sure used the supreme court has said that the rules of the federal rules that is established time limits and such are really jurisdictional they're not truly jurisdiction they're just really rigid if somebody says something premises one concerning the licensing of musical content into music nets from the record labels and the other concerning the distribution of the aggregated content is the district judge applied to write standard in determining whether or not   that most favored nation clauses have a tendency to drive all the terms of benchley to being essentially the same and the whole industry uses most favored nation clauses it is that is that relevant to our discussion here i mean if everybody uses them and therefore it's all driven to that what's the joint venture got to do with the problem problems the most favored nation cause and that's not the case we're talking about another well there are several problems there number one even the fact that multiple parties have m f and clauses does not show price fixing that was the second circuit's decision on case therefore you know it's a code an indirect way of saying we're all going to redo the same terms it's just not right and when you look at the actual license terms they are different the justice department did look at the actual license terms and that's  inconsistent with the contract is inconsistent with the absence of an offense in the other record labels contracts and she is functionally standing the justice department didn't know what it was doing when it conducted its eighteen month investigation on what basis she found that i don't know there was no evidence  for it so her analysis on the end of any closer on the facts is wrong on the law now turning to the second thing that she said was false in the music not white of context the preceding page so what she focused on page twenty one specifically says that real networks and warner two of the four shareholders in music are not allowed to see distribution agreements because they have affiliates they have distribution agreements of their own footnote thirty five on the page she looked at specifically cite section five point four c of the stockholders agreement and quotes holders those with their own distribution agreements the terms of any distribution agreement that makes sense because the whole structure within the is that it was to make sure that competitively sensitive information was not shared not that no information to share but the   it's a little unfair to do this maybe but on the last argument we heard not from you but from your co counsel that one of the reasons we shouldn't be hearing  evidence you laid it all out nothing was concealed but you didn't interpret the evidence quite the same way that i do now and therefore i find your attorney client privilege to be vitiated that doesn't even come close to meeting the standards and to tell one and if that were the test  well i look at it differently therefore i find you were lying to hide happens if instead of saying here's all the evidence they say well here's some of the evidence and we don't think we did anything wrong what happens if they say here's all the evidence we think is relevant we didn't do it while we turns out there's some some other evidence  firm views on both the standard to be applied and the collateral order doctrine although i'm happy to talk about either of those would be to jump into the dense as part of this appeal which is the applicability of the facts to the record because i think that if they have been very unfairly treated before you get there could you address the collateral in order doctrine as applied to this case that is to say this case is a little different from the one we heard earlier given the motion to reconsider particularly useful to our position that we don't think that it does under these circumstances we think that when our position has been that the collateral order doctrine does not apply this case because this kind of discovery dispute i understand that there's precedent you've written a lot of it but this kind of discovery dispute is always going to be litigated in the district court there's going to be motions to reconsider there's going to be motions to renu based on that renew the motion based on new facts there's going to  be litigation about the scope of what this order means whether covers those documents or those documents and for those reasons we took the position nationally that cohen didn't apply shouldn't apply to this case and and that it shouldn't be reviewed we don't think that that position is added to by the fact that they filed a motion for leave to file a motion to reconsider i do want to emphasize for the court though that this notion that everything was before the district court is completely wrong they filed a motion for leave to file a motion for reconsideration they dumped a huge amount of material into the record that was not before the judge before including a number of these agreements which they're now mentioning in response to  and i maybe i'm wrong i think are you saying less everything was in front of the justice depart that's that's what he said and i'm saying that a lot of a lot of what they then decided was relevant that was before the justice department they tried to put into the district court record we filed a motion to strike a panel of this court denied the motion to strike and i don't know whether it's still pending before you order or not but but here we are and our position still is that this court ought to decide this case on the record that was before judge patel which does not include this material that was that was put into the record afterwards and which is quite extensive and the i guess the important point that i want to make is if we'd had a chance to respond to that material we would have had a lot to say for example this notion that they argue that that if you look at all three music net licenses they are different they actually have an appendix in their brief what they don't put is that the most important really the only important term in that license for purposes of this appeal is what they're going to make and all three of them agreed to make the same thing they're going to take fifty percent and that revenues and they're going to carve it up according to their proportion of usage that they talk about differences if we'd had a chance to point out similarities we would have been able to do that so the record is not complete in the district court but having said  jurisdiction and then she went on without any briefing from us to deal with those documents to say why it wouldn't make any difference in her opinion but what my point is she didn't have a full record in the sense of us having a chance to respond to this new material decision was not separately appealed anyone it was not and we believe it's irrelevant that all those documents and that decision is irrelevant to what is before you today but i want to talk about  he we heard a lot about about most favored nation is cause it's my understanding that you were looking at the record their record before the district court and seeing it for a decision is supported and we and we ask first as to the standard that she's using to judge whether or not the crime fraud exception is properly involved yes your honor in on this one this is not as as we believe not as complicated as the bertelsmann even my dispute about the standard here judge patel said something that sounded very very close to what judge fernandez said she said there's two paths to follow she said this is page five in her opinion path number one just to show the house i want to get page five chen standard she cited in re grand jury case but it's the chin standard of reasonable cause to believe that the attorney services were utilized in furtherance of the unlawful scheme  requirements and facts in there the issue was a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the cried statements she made a find fraudulent she sued she used the words as judge pleasure pointed out misleading if not false but i believe yes i think a fair reading of her opinion is that she made a finding but i guess the more important point that i want to make is that for this court's point of view we believe that you should follow the ten other circuits that apply abuse of discretion and we believe the standard for this court is to look at the entire record how can we have my piece of discretion on the questions whether she has planned a proper legal standard legal standard is what it is and that's a question of law that's correct but that the proper legal standard that the proper legal standard is of use discretion as applied to ten one and ten zero one says false and fraudulent statements are actionable and she has pointed to what she thought were false statements well that is deliberately misleading if not completely false that that i believe says that's a false statement within the meaning you could prosecute a case of thousand and one case that that met that statement states versus character so you interviewed her her her paraphrase of the statute is applying the statute accurately yes your honor ok and when she says as a result the court finds reasonable cause to believe the statements related to safeguards in the white paper referring to e m i were deliberately misleading we read that as as acknowledging what she said earlier that the standard is thousand that thousand and one is what she's lying she's not applying the wrong legal standard we don't believe and the record supports are for the following reasons no knowledge of the specific terms of the other music net agreements it says again e m i is only aware of the terms of its own subscription service agreement with music net it says it again e m i has no knowledge of the terms we these in our brief the music net brief which was written by lawyers and reviewed by it by e m i lawyers says each party knows only the terms of its own agreement with music net now we know because both sides quoted it that there was an e mail on march twenty sixth two thousand and one which says from music net boss to to to see it to e m i chairman in order to be responsive to your team's concerns that are specifically tied to e m i coming most recently the party and willing to offer a side letter between e m i and music net the commits that score economic terms price per song advanced percent of revenue pool will be no less favorable than b and g s and the in g s and he goes on to say we're not going to put that in to an agreement because of any trust concerns that e m i did tell the justice department about  bertelsmann and warner music group although mr glaser did not disclose any specific terms that's how they characterized how can that be misleading if the department of justice were provided with the actual email to make its own determination of whether or not the e mail that's fairly can't i'm about to tell you because four days later and e mail from the music net general counsel to an attorney for each who was drafting the deal this e mail was not provided by e m i to the justice department the music net general counsel said we have simply been able to use but the e m i general counsel was worried that they weren't going to get as good a deal as the others so he's being reassured by the music net general counsel the man they're drafting the documents we've simply been able to use the work put into the previous agreements to come up with a deal that works and treats everyone the same believe me neither of them has a leg up on either my in these licenses rob glaser the c e o has specifically ordered between sure we're equal treatment because of the personal assurances he's made to eric i've made a huge effort executing on that commitment now what you know about that e mail which what she in my did not submit and you go back and read the way they described this very general terms and nothing specific and you realize that the lawyers who were drafting it knew that they were getting equal terms i think a reasonable person can conclude that we have got a substantial problem a factual problem not a problem of advocacy and prosecutable as a crime i i think it could be prosecutable as a crime of course somebody says i mean but somebody says i didn't know about i don't know the terms of anybody else's agreement with music that and then they say and by the way here's this kind of ugly e mail that says but but it's very general it's not specific at all and four days later they're getting reassured by lawyers that the terms will be quote equal we believe that that's a reasonable person treatment they're getting i i would risk really i think if somebody says i'm going to get the same terms they're going to be similar in that somebody says they're going to be equal terms equal is different from similar it's different but my point is different yet i think promised i'm going to get equal treatment rhyming promised i'm going to get equal terms well at that point i know if the promises kept i'm going to get equal treatment and equal terms or equal terms but i don't yet necessarily know what those terms are going to be because i don't yet not necessarily know what they got all i know is that going to be equal well and you're now you're you're  attorney drafting the agreement you're signed about seven days later and later on when the justice department comes around and says you know we're concerned about dispersion and what you know and what the other people know and whether or not you know your competitors information and you say don't worry about it mr justice department not as a matter of advocacy let me assure you factually we don't know what their terms are under those circumstances your honor i think a reasonable person which is i'm not a prosecutor we're simply mere civil lawyers here i think a reason that there is reasonable cause to believe that that is a false statement that it is a deliberately false statement because the whole has the justice department have not only this first e mail that says we promise equal terms but also have the contract that they later get the justice department has the contracts and they have the email about equal terms from music net production we know but they don't have it from e m i we know e m i doesn't give them the email they might have given him the email and we've acted for him we've suspect that but but the justice department did get the email in this millions of pages from another vendor namely when you say d n a which we know you now even want to talk about as that is the one that e m i didn't give the justice department and didn't explain in the white paper and that makes that her statements in the white paper undisputed that the justice department has as they first have the e mail that says we're getting equal treatment no no we're getting similar that the first e mail which is at two eighty six in that excerpt of record is a march twenty sixth e mail that says i'm willing to offer a side letter that commits to the e m i score terms will be no less favorable and that's the one that's described in the white paper as mentioning to in very quote very general terms honor because of the timing at the time that the just this this all happened in march of two thousand and one middle of two thousand and one the justice department announces we're going to look into this these white papers are submitted way off in november of two thousand and two ve the evidence that i'm citing is that they were told that the lawyers were told that the terms were equal i mean if if and that's i mean that's what we have and then the i mean the other evidence i suppose you have to go into the motion to reconsider to pull it all out because it wasn't before judge patel but the other evidence i just mentioned mention when it comes to what's important in these licenses how you're going to split up the money you can split up the money a million ways different people c negotiate for a different price per download and so on lo and behold they all got the same deal take fifty percent of the net revenue the docked if the well after deducting expenses and then divide up that's fifty if they were literally true there would be no violation of one thousand and one of the harry talks about the difference between the bronston standard and the thousand and one standard i think but i'm certainly not going to argue that that literal truth is not now to talk about nor does e m i exchange any other competitively sensitive information regarding its business or the businesses of other music net participants and they say again structural safeguards minimize the risks that can set and then they go on and say we've got these fire walls and we know of no breaches of the fire wall so they say all of those things by their definition knowing that they have equal terms with their competitors partners  music that are a breach of the firewalls those statements are false once you understand that they know that they have equal terms it's and another instance which judge patel pointed to there was the napster content agreement these these statements in the e m i in music that white paper about fire walls and no shifting of competitively sensitive information is are are contradicted by the fact that they passed out to the shareholders the the napster content agreement now you've heard an argument in this court about how the e m i was entitled to see that because of some contract that it had and that was in the record that was not an argument that was made below the argument below was that they were that that they had a right to see it because they didn't want to deal with napster and they had various other arguments but if you look at the record below they weren't arguing the contract but even if they're right about the contract  they the the fact that what the contract would allow warner to and they're saying there's no breaches of the fire walls and they know because they got it that warner got it too and warner is a direct competitor of napster through its a o l subsidiary so last point as they say there's no evidence about c enter thank you i've mentioned the petition that the the need to make these false statements ok the between the illegality and the scope of the order she limited it to the anti trust investigation which by definition limits it in time and subject matter and as i pointed out before i am sure whatever the but in using that white paper itself suggest and it was redacted but the written material you're now waving at me is material that was not presented to the district court prior to your motion to seek reconsideration it was correct it was opportunity to respond in its papers and that was a case where there was no appeal from the most from the second ruling in our case we did appeal we filed amended notice of appeal the day after dr patel issued a ruling on the reconsideration so both are fairly presented leave that it was an e m i staffer production and i haven't been able to confirm that in fact it was but we but i believe his conceded that it was produced by music net the other side of that e mail exchange the d o j had it and any event all that e mail says is my boss rob lazar has already promised your boss eric nikolay that you'll be treated fairly and equally that that merely harkens back to the e mail that we've been talking about between the chairman of the two companies of me with the lawyers on each side echoing what the