hearers first error was that the magistrate made no attempt to find whether or not exceptional circumstances justified deposition and then the second error was that there was no basis from which the court could have found exceptional circumstances justified depositions and the second part of that analysis is key its part three b in the f d i c opinion because that's where this court identified what's necessary for plaintiff or part seeking a high ranking official deposition to make a strong showing of exceptional circumstances in that regard but doesn't this really all come down to whether the testimony is available from another witness or other witnesses isn't that really the crux of the case i think that it's a big part of it i certainly i'm not conceding that there's not a problem with the heightened relevance of the central ality of the issue that's here but yes the other sources is a problem and i mean if you go and you look right at the the magistrate's order i mean one problem with it is that the test that the magistrate set up governor bryant staff member who has personal knowledge on the subject what he was saying and what he found was that when a high ranking official has a conversation that's allegedly relevant to something that you don't have to go ask the other persons who participate in the conversation you just go right to the high ranking official on and if you look at the exhibits but snipes not or with your thirty six witness right that's correct the deputy one thing is i mean he testified that he didn't know in response to several of questions are referenced on pages sixty seven of the magistrate judge's order he testified i don't know but it's not as simple as that and that's why we worked we printed the actual testimony there and took each one a part in our petition and if you look at page thirty two and thirty three of our petition you have a summary of exactly what it is that were the issues that mr s r what was found that he couldn't testify to the minute details that we're going to go back one step before do we know i assume that we we have identified these alternative witnesses do we know if they're available and by a vailable i mean not just physically available but legally available i do they fall under the same cloak of immunity for lack of a better word will they also be met and attempt to depose them also be met with an objection by the state well there's five there's five the british there's the madison county board of supervisors turn don't represent madison county don't represent her  in my opinion she's not a high ranking official so no as as to her as to the legislate toward i think what your honor is getting at in this was an argument that was raised i think for the first time in the petition but this issue about what's going on with the legislate tours in trying to get information from them it's a key point it's something that i had in my list that i needed to bring up what's an issue with the legislate towards this and it's an appeal that cause number s cited in our brief they serve documents subpoenas on legislate or eight of those were only documents subpoenas they're not they haven't said that we want to take their deposition they haven't tried to get information from them  elsewise it's purely about documents there they have won twice on that already the magistrate said that they get the documents and a privilege log and the district judge said they get the documents in a privilege log and now the legislators who represented by their own counsel have argued on appeal that obviously that the lower court was wrong but that avenue has not been exhausted it's only as to documents and when that's resolved who knows what the issue will be about taking their depositions own so and i think that that applies we had five these that's three supervisor turn and there's three and then there's one legislator or that was an opponent of the bill and there may have been a conversation with him mr snyder couldn't remember if there was one in mid march there's no reason that they can't go talk to legislators that are on their side of this issue they certainly haven't shown anything to show that they can't  anybody saying it's it's the problem or at the same time i don't when i read f t s c i don't read heightened essential or critical and when i look at the district courts in the fist circuit over the last since  hundred five they're focusing on relevance but at the same time it doesn't seem like it gives me an exact formula so correct me if you if i'm thinking incorrectly first you'd have to show high ranking official it doesn't sound like they're disputing that as your client they did initially but they then you'd have to show that as to the hiring official the deposition isn't burdensome and it doesn't sound like you're contesting that two hours to issues is that much but but maybe we have some room to discuss their third would be relevance i don't see that at this stage to be implicated but the big one i would agree in the question at least presented to you is is there another source is there another source yes therefore it wouldn't be necessary but then we run into the problem of the legislators are this court or other courts will grant mandamus to require intermediate steps specifically written into raga tori's yes ok that wasn't done here is your client it could be done it's less burdensome kate but you don't see those three terms you don't see essential critical or heightened anywhere in f c c correct that's correct ok but with respect to the to the alternative source and going to the two written questions instead you know the ninth circuit in oh how awful ok pretend i didn't get out of the way there i'm so sorry i'm so embarrassed apologies i think and i don't have an exact count there's eight or nine circuits that have that have looked at exceptional circumstances high ranking officials right and the two earliest ones are the club case from the ninth circuit and i think that i think that there is if you look at our briefs below there's a string site that ok all of the courts but there's a clip in the ninth circuit that when you got to do the written questions around ok there is the sweeney versus bond case from the eighth circuit that was directly trying to depose the governor and the high ranking official privilege apply and then you had the cluster of cases that are cited in our brief that are the the federal cases the kesler the holder which is the e and then you had f d i c and then you have some more recent cases the first and second circuit cases bogan and letterman and then i would have to say just because we're talking deposition and in that particular district court opinion applying the second circuit law they were looking to whether or not the issues that they were going to pose the commerce secretary about were central to the case and then also whether alternative sources has been exhausted and in that particular case which i think is the example of how this high ranking official privilege work they covered the waterfront they they deposed people from d o j they depose witnesses i mean scores of depositions before they could get to the high ranking officials deposition in this case what we have in this is important with respect to alternative sources suspect taken mr schneider's deposition to other depositions one was a madison county thirty six where they didn't even bring up anything about whether or not anybody had any discussions with from the governor's office had any discussions with anybody from madison county but they've taken three depositions total they've served nine in iraq or tories that are essentially boilerplate i request for production and ten requests for admission and so here we are we're sitting in this two and a half year old case already it's not going anywhere there hasn't been an exhaustive search for all this other information and they take a thirty six deposition there's a few i don't know answers to questions and then that gets horses up as a reason to depose the governor's chief of staff about an idea that he had in twenty fourteen bad alm was actually about a state agency becoming responsible for the way thirty six works isn't there when you tell him here's a witness that can testify to the things that you've listed in the thirty b six request and then witness says i don't know or i don't remember what are they supposed to do well one thing they could have done and didn't said is there's never been any contention that mr snyder was an unprepared witness or that he was non responsive or that he didn't that he did he didn't give enough information i think one remedy there would be to go back and look for choirs to resume the thirty six deposition if that's what if his testimony was so off base which don't think it is when you look down into the details which i think you have to do his answer was that he was not aware he didn't know at the time of the deposition but that he could go back and find out that information and present it as that that was in his answer but he could certainly do that we could have in fact that brings to mind and look because you brought it up judging a hard i think a great example of how the high ranking official privilege works and that the methodology and the care that should be taken th were time trying to take his deposition the first thing you did was said i'm not going to decide anything now you held in abeyance and made him go take other people's depositions and then when they came back you required them to tell you hey what is it that is the essential parts of your case that the critical parts of the case they came back with four things you looked at that and you said well one two and three no that's not relevant that's not that's not critical here before is and then you turned around and you said i'm not going to make him sit for his deposition here's the question he has fifteen days to answer it under oath and he turned it in i don't know what happened after that i didn't see it in the in the history of the order but i assume that that put the issue to bed if what we're talking about here are five details and this is what the magistrate said we're talking about if we're talking about five details about possible conversations may or may not have actually taken place i don't see how  up taking the written question her out will now work to resolve the issue because i mean some of the questions it was just a time frame issue was there a conversation in mid march so i don't know what he didn't know if there was  a conversation in myanmar on the other questions were you know were there were there discussions with sponsors of some other bill that went to the lead so that when even listed on the deposition top list of something that mr snyder had to prepare for said i don't know he could easily go back and x and we could furnish that information or your argument is that that was outside the scope of the thirty six notice well i don't question i think it certainly was and i think mr schneider answered that question anyway if you look in our petition and you see where judge ball identified mr cindi's twenty fourteen idea as something he found significant the rest of our brief and the deposition testimony cited in there when mr schneider said there were not discussions with legislate tours before early january twenty sixth team so they come back later and say were there discussions with legislators before early twenty's sixteen he says oh i don't know it was outside  the deposition notice and i frankly think he was caught off guard as to your other source argument do you claim the district court made a legal error saying we don't even need to look or are you claiming that there's a clear error of fact saying there is no other what's your argument as to where the indisputable patently obvious mistake occur i think there's both you know and the reason that i think that there's both is i don't think you get the gist default to this rule that if there was a conversation with two people that they're just automatically entitled to defeat the other source by saying well you're entitled to know what he said was what was said not what he said was said and example is if you take this rule or this this principle that was cited here if a high ranking official gave a speech to three hundred people and you applied this to that to that you would say you don't have to go to pose the three hundred people about what was said you need to ask is it possible the district court sort of having had the legislators opposition knew that there was no other source because they were going to they were opposing it likewise well he overruled their objections yet of course but then there's also my point that i read said earl the legislator issue that's just about documents they've never broached the issue about whether or not legislators can be deposed about any of this stuff and frankly they've won twice and if they broached that issue it sounds like the legislators will probably lose but that's something that's not on appeal in the in the other case about whether or not they have a privilege for third party communications and then there's an issue about whether or not their internal communications would be subject to legislat privilege and so i think what we're talking about here are third party communications that the district court has already said they have to turn over documents and i'm almost out of town hall but i have saved some time for a model with there's no difference do you know of i looked you know of any fifth circuit mandamus since one nine hundred ninety five where we have mandamus to district court for compelling it high ranking officials other circu something that's very important and it seems to me that when you look at the fact that pretty much until this commerce secretary case every circuit that ever looked at him and amos had mandamus the district court on it that's the way that by with all due respect to my friend on the other side the governor's argument isn't bait and switch but the governor continues to refer to the exemption an issue in this case as being a privilege when it is not it is a general rule subject to exceptions seeks this court's relief through mandamus which as this court is mentioned is a drastic and extraordinary remedy to prevent his chief of staff a person who he identified in his initial disclosures as having discovered the information for having to sit for a two hour deposition that the magistrate judge specifically limited to two topics that were relevant to the claims in this case well there's the two things are not mutually exclusive i assume you would agree that is to say if they're going to be truthful about in addition to the disclosures which which essentially says this person has discovered the information that we intend to use to defend against the claims even vance in addition to that then we have the fact that in two thousand and fourteen mr saunders conceived of the idea of an airport takeover we know that a year later the governor's office is internally discussing that idea in memorandum we know that seven months later in january of two thousand and sixteen he's in the lead in the state center who announces that he intends to propose a bill to take over the airport then contacts sanji before the bill is ever put on the floor in the to discuss the concept from that point forward we know that song she continued to talk to the legislators who were instrumental in passing this bill in amending it and pushing it through the house if you take that knowledge and you look at the claims in this case which there's a section ninety seven climate of mississippi's constitution it's a special law claim which essentially says this law was passed to benefit some to the exclusions of others motivation for the law is relevant to that claim you look at the expression climb the federal equal protection claim it's a race based equal protection claim that claim requires  discriminatory intent or purpose and to do that we have to show that racial animus was a motivating factor for this law and the supreme court ever since arlington heights has made clear that that  inquiry is a sensitive inquiry into both direct and circumstantial evidence that may be available is it your position that you can do chief of staff all other questions in other words open season or do recognize that no we we're not trying to depose this gentleman for every topic out there the magistrate the magistrate judge's limitations affected us just as much as they affected him you can't lose sight of the fact that the motion for protective order of the governor f the court to look back one one last time at that order by the magistrate judge because the five topics the argument that i just heard about the five topics is a red herring the five topics discussed in his order more slowly establishing his personal first hand knowledge which is what the magi twenty fourteen until the day the bill was signed the relevant time period so when you when you take those facts into consideration it on its face it may seem broader than the five topics areas but again those five topics here were solely intended described which is let's get some written and drug tori's first let's make magistrates and just do a little more probing rather than jumping right to deposition of a high ranking official why isn't that the the way to give meaning to the word extraordinary circumstance parties the disputes going on now and i certainly don't want to drift too far out on the record but i can i can tell when we have talked about it is within the record that the legislators have vehemently opposed to our documents opinions and they've landed us in this court it's highly unlikely that that the that the legislature are then going to turn around saying well you can oppose us for seven hours under the federal ok well you know the record really well there was no motion to depose them ever yet and as to their efforts to protect from  subpoenas the magistrate ruled against it so the magistrate when ruling on the issue before us now clearly thought the legislators were were available and just in orally said that's just not necessary you're entitled to the high ranking officials thought that that that it takes but just two points in response that you are my first would be that as the magistrate judge pointed out as he relied on the fact that the governor identified sanji as being someone that he would use his knowledge to defend the claims and secondly it's  the sensitive inquiry that the supreme court spoke of in arlington heights that's that's required for these claims that is what in addition to the specific facts of this case that is what distinguishes this case from those other circuit presence you will not see another circuit court addressing an equal protection claim in this context where a high ranking official has been identified as having knowledge when we've gathered evidence from the source that we've been able to talk to you and that evidence and shown that he has personal firsthand knowledge that source the thirty six witnesses could not all of the information that was necessary and the next logical step for us was to go to the legislature and we we have tried that we are now in this court with that so naturally we go to the source itself the person who has the first hand knowledge and that really judge's reasoning was that he is the person within the governor's office who has personal first hand knowledge of what he what he knows now with respect to the governor's challenge as far as the legal standard you know i think i get the sense that's not that's not he's kind of not really addressed that here today but i will say that he's got to show this court and beazley pointed out he's got to show that it's a clear and indisputable mistake of law by the judge not certainly don't think given the president on the circuits given this court precedent that you cannot say that here just one word about f d i c i know that you get in his examination that case came up f d i c is a materially different situation than what we had before this court there the district court failed to even apply the the what the substantive burn he addressed the high ranking status and he also addressed the substantive need for the deposition which we've talked about the personal first hand knowledge now with respect to his challenge to the the factual findings as applied to the law your honour's you know again as we are going to brief the federal finding here is that saudi has first in knowledge personal first hand knowledge that cannot be obtained from other sources or the factual findings behind a district court after it has performed the analysis that the exceptional circumstances analysis and then re evaluate well how was that basically critiqued the analysis how did it take place that would run afoul of what this court spoke of and  this court's judgment for that of the district courts now what happened in f d i c was that there was a clear abuse of discretion this court plainly set that forth towards the end of his opinion that was a clear abuse of discretion not to apply the standard you don't have that here in this case and this court saw that as well in lloyd's register in north america well there was an unexplained in our motion without any weighing of the relevant factors again you don't have that and it's our position that because you don't have a clear abuse of discretion there's no need to  looks so the the kit the key language though from f d i c is still the language that is where the testimony is available from an awful witness let's take a hypothetical case in which it's obvious that the testimony is available from an alternate witness who is readily available and fully knowledgeable on the subject that's not your case you would say but let's let's just assume that then in that case the standard would always be met when it would be it would be a clear abuse of discretion c v in that it in your hypothetical is the dish of what i found you still don't have to go to that on this right i'm not i'm i'm not sure i'm entirely following that i will i would say that if there is another source then that's correct the the rule is personal first hand knowledge not available from other sources and so yes naturally they would they would need to do is to go towards that other source that's certainly not what we have here and i think the thirty six witnesses testimony speaks for that i mean i guess the point of my question is the same question the first question i ask mr feeney which is doesn't doesn't this controversy really boil down to whether the testimony is available from an alternate witness or witnesses well i don't know that it does your honor and i say that because i don't think there is another available witness i certainly  don't believe the legislators are just in the disputes that we've had with the legislators in court which again the measure judge was aware of those disputes but just also the fact that songy had such just such relevant knowledge from the governor's office standpoint you know that's a measure he conceived of this idea from the governor standpoint he continued to stay involved in that he talked to the senator who sponsored the bill before the bill was put on the floor to continue to stay involved with it and so i think i think really it's certainly an issue the other sources i agree it's certainly an issue i don't think they've they've shown that there's another source here but i think another issue that the court i hope the court doesn't lose sight of is just that this the exemption here the focus is on the individual and this is not a situation where you have for example the attorney client privilege where the nature of the information is protected and once it comes out of the bottle that that protection is destroyed forever this is a situation where the focus is on the individual and his time and his duties the district court took that into account i think that that that's clear in his order that he took that into account and he and he limited the deposition to the two relevant topics that this and a man has personal first hand knowledge and restricted to two hours and so i think that so the chief of staff in theory if he had to be deposed could still assert executive privilege of exists as it refusing to answer to the extent of it exists yes your honor and i think the measure nudged in his order he specifically says any we can question him about non privileged communications and his actions regarding the concept and the bill so that's correct your honor but when we when we look at the challenge to the factual findings as applied to  long look at that i just i stress the matter for a judge's order because the measure judge very carefully went through each of the three factors that i mentioned earlier from f d i c of course he started with the fact that the governor disclosed this gentleman as having knowledge he would use back to arlington heights and the sensitive inquiry that is necessary in this case and part of that sensitive inquiry is to look at the specific context leading up to the bill that's being challenged another part of that inquiry is the historical background leading to the bill and here that's exactly what sanjay has knowledge of he conceived of the idea and twenty fourteen he discussed it the governor's office was discussing it before the bill was put on the floor he discussed it with the sponsor of the bill before it was put on the floor and then he stayed involved and so i think this is exactly the sense of eventually i'm going to push back on one thing the word extraordinary it isn't just a discovery task i mean the word everyone accepts that what's the guiding description from the supreme court's got to be an extraordinary circumstance so on the gentleman's time and responsibilities and because the district court limited this deposition to two hours over two topics i don't see when i don't think that's quite right i mean the purpose of this isn't just don't waste time it's you can't have every single lawsuit anyone wants to file means that high ranking officials have to stop that's going to chile component rather than just a timetable i think it's more than that so what what's either the pragmatic or legal argument against sanji you get your derogatory he answers and that the lower courts have to do a little more work before it comes to us what's the downside i think the downside in that that kind of circumstance where we should have the opportunity to to to face to face question the witness you know try to refresh his recollections with documents in real time and also assess his credibility if he if he's going to say i don't know assess his credibility let me go back to something you said and i want to ask about it in light of this question at the outset of your presentation you said that it was someone who has been identified by the state as someone who has personal knowledge that the same question over again but there's a difference between offering somebody up affirmatively as someone who we may or will call as a witness at trial to refute the allegations and elicit testimony versus someone who happens to have information but who nonetheless has has the benefit of some limitations on their testimony how was the name given to you aside from you seeking to depose i was the name injected in the case  person listed in our documents we looked in the documents they produced he's all over the documents there's many e mails with him on him there's memorandum discussing his concept of the airport takeover identified as you say any person listed in the documents what  thank your honour's and let me cut straight to that last point that that has been talked about with this identifying mr sanjian discovery responses first of all and have to say they specifically identified the directors there in response to in very question this is nothing like that there were initial disclosure and the initial disclosures said persons who are going to fight in documents may have discovered knowledge you know what the documents were that were produced with the initial disclosures it was everything that's on the legislatures website reflecting going to legislative history history of the bill the bill that they've studious over that's one hundred seventy four legislate doors who we identified that's not identifying joey in our discovery responses to the border play tell us everybody who has knowledge about the subject matter of our claims we had to do the same thing we had to produce document after document after talking there's thousands of pages of document including every document reflecting any communication from the governor's office here so we put the same kaviak in our responses to the boilerplate in iraq atory so yes joey songes name is on a few e mails about consoling so come in and get a meeting with the governor and so on and so forth but that's hardly identifying him as somebody who has direct personal knowledge of something that's wrote that relevant to the case and we're not use him in using him it's not a sword and shield situation where we're trying to hide him now and then we're just going to go to trial and whip him out if you look at docket number two fifty nine one is mr signs his declaration is the declaration that says that he reviewed the thirty six witness testimony that the thirty six witness testified accurately he didn't have anything he could add to the responses it also says in there i would not be called to trial this issue came up in the briefing he would have to look in the briefing to see this but this is another one of those things where the district court magistrate hasn't done enough work if we were trying to use sanji in the sword and shield sort of situation the remedy would be as soon as we do put him on a witness list or we indicate that we're going to call him or some th they can go take the deposition that was a district court case i can't call the name right off where that i haven't heard them push the sword shield it sounds like they want him affirmatively if he's the inception of the takeover idea and had racial animus in origin it they aren't saying i haven't maybe a missed it they aren't saying that their whole purpose of getting him is because they think you're going to ambush them with well i missed it for two reasons to number one is that we brief this thing there absolutely i'm sorry but the second thing about that is this is about the legislators motives and if you look at our petition and you see that the only testimony in the record you see that the testimony is that there's no connection between cindi's idea about