has and that remained is the relief that we seek your today so under intel vs a m d there's basically a two step process in these cases the first step is to apply a three part test  process and concluded that as the district court read the statute discovery of some sort was therefore mandatory and the district court didn't exercise that discretion that it no one knew it had until the supreme court actually rule the three factors were the intel decisions set forth that we think are appropriate here first is the responding party here a party the foreign proceeding foreign prove gathering instructions and third third point we make is the relevance of a protective order and in related cases and here if you look carefully at the record the district court basically said  said that she didn't think she was supposed to get into the details of how the taiwan court operates indicating she did not exercise her discretion so to go through the a m d versus intel factors again the first factors clearly met my client and monolithic our systems as a party in taiwan or subject to the jurisdiction of the taiwan court were i'm unaware that the taiwan court has any made any request for evidence from my client as to which it should not reply second factor which we do which we urge is the nature of the discovery requests as they related both in taiwan and here in taiwan before this application was filed the petition wrote to my growing to the taiwan court and asked for some very broad discovery the taiwan court after thinking about it and after reconsidering only ordered a very narrow discovery and lo and behold a few months later to micro files in the district court here in california a very broad application for discovery which asked for things that the taiwan court already said it didn't want and it was not going to order my client to produce and interestingly even though the district court here did only want up ordering narrowed its discovery after all this time it's been several years now oh  you can see if the in that case the australian court really wanted them and if it doesn't then you can do proceedings in the united states for the third point which is of great importance and one of the important port reasons why we're here is confidentiality the taiwan courts really don't recognise protective orders like us courts do the same they don't do the same way the the t aiwan lawyer for the zero two micro in the record it knowledge that attorneys eyes only confidentiality restrictions are quote unusual and quote the supplemental excerpts at fifty four my clients taiwan lawyers said basically you don't have these type of confidentiality agreements at all and there's no dispute but that the documents being sought are my clients confidential customer business financial type documents there's no way to there's no way to practical way to ensure their confidentiality in taiwan and the district court in ordering a protective order that specifically stead would not govern the taiwan court ma attempt even to try so we're faced with a very real spross back to the contrary to this such as the intel from the supreme court and four pillars from this court that are documented to be shipped over to taiwan  they are because they are collateral what i did i thought was helpful in terms of trying to figure out the jurisdiction issue as i read all the cases that have been cited in the recent the appellate level and i tried to grid them according to but there is a fair number of cases that are in the record here that where there are orders granting discovery and orders running discovery of the real party in interest such as my client model of the power systems so from the ninth circuit there's the sealed one case and the tokyo case from five thirty nine of second which fall in that category in the second circuit there's the case and the government here let's get and for the proposition that there has to be an actual contempt finding before you can have any sort of appellate jurisdiction even in a collateral proceeding like this one and and that's never been construed by the supreme court a descend if you want to get to which was the first decision so it wouldn't matter and in other words it's  order granting an administrative and administrative subpoena is immediately appealable now in the second circuit in the government of india case a judge friendly said that type of thing is immedia stands in a seven hundred eighty two context which is the one we have here and you grant discovery of how this contempt in order to have an appealable right we don't have that everybody agrees and then we have these seven cases most of which don't even mention it they just assume all cases that you can look up that are never been quote overruled and quote but but no one cites them anymore because no one thinks they're good law anymore and that could be this case who fall into that category so because or not is why the there are no longer the laws wrong in light of everything we know without making a decision and figuring it out but nonetheless it's in the circuits then if you think it's been eroded by the supreme court that might be oh yes and so for example the church of s just happen to be reading something earlier this week which is not in the breeze but it's a case of one sort of two months after harvesting was just cited in one thousand seventy four the supreme court recognized another exception to the alexander line of cases in the watergate the supreme court had jurisdiction and said you know alexander has been eroded there's another exception here which obviously of arguing applies in my case but it basically said we can't expect the president to be held in contempt or a court to want to hold the president  contempt so we have at least two cases following hardest on which said this rule is not absolute and not not not necessarily followed and the other point i'd like to make about hardest on is the reason if you look at the reasoning provision in it therefore alexander must apply and the contempt rule must apply so i thought that was kind of interesting i want to read section seventeen eighty four and yes it does talk about contempt what it talks about contempt good morning and it please the court my name is virginia the marquis and i represent the micro unless the court prefers another order of argument i thought i'd address the jurisdiction question first and i'll start with the issues the cases that were raised by opponents in their reply brief didn't have an opportunity to address and focusing specifically on the hottest and case which is the governing law of the circuit hospice and actually considered the case party to the form proceeding which is of course the case that we have here so my first point would be to suggest that distinction that that might be helpful to the court in trying to figure out how to deal with the jurisdiction issue is one having to do with the parties want that as cover why you'd be fighting so hard for this interpretation has this case gone to mediation in the ninth circuit no it has not your honor and the jurisdiction question in fact we we in connection with the merits of the the the real issue though and i think this is one that avoids the problem of having to have on banker view hardest and is that however you slice it the decision was not final the magistrate judge and the district court judge reviewing the magistrate judge's decision and left a couple of things clearly open to be resolved first among those was the confidentiality issue which is being raised here was supposed to have been dealt with by a protective order which the parties were to negotiate and present to the court that never happened because the appeal was taken before the parties completed their negotiations and before there was anything to submit to the court in addition the application that motion michael regionally made asked for depositions in addition to document discovery and explicitly recited that the depositions would be taken of individuals who could be identified only from the documents that we expected would be produced or hope to be passed in response to the application and were in a position to ask for the depositions yet and finally as a district court record all as a practical matter i thought you know if you if you turn over all the documents and then say well it's not final let's just wait till we get there and we'll figure out what we order there if there's any harm it's already been it would be coming here with a confidentiality order in place there so that is that n p s raises as a point of discretion exercised would have already been resolved further by the court below lawyers that if the supreme court has eroded made in applicable one of our decisions this three judge panel can ignore it or can say we're not but what is your position on that argument carve out which is called the perlman doctrine for third party subpoenas i should mention however that some of the cases that counsel cited in argument are not ones that were brief below and i have not had an opportunity to review those so i can't comment on something i have not read evidence in a foreign jurisdiction so there was nothing more for the court to do in either case so the jurisdiction question that we're debating here didn't come up in those two cases ok so now i'll turn my my me time to the of the standard that governs this court review courts review is abuse of discretion and it is not the case as n p s contends that the district court below found that that he had no opportunity to exercise discretion here quite the contrary what was argued below was that there was a discoverability requirement that is that there had to be a showing that the evidence that ocean microsoft the documents that out to microsoft for use in the proceeding in taiwan h be discoverable in taiwan further n p s argued that not only did it have to be discoverable but that ocean micro had to obtain the court's permission in taiwan in order to engage in the the application for relief under seventy  not certain number of factors that must be considered in order for discretion to be exercised appropriately the court in intel vs a m d stated that it was concerned that sufficient scrutiny had not been given but well to be used a factors that might be considered in that particular case this is not a checklist of factors that must be applied in all cases so putting aside the notion that there was a change in the l suggested or that its objectives were somehow improper or unfair and that it would deny discovery on that basis which if you read the briefs submitted by appellant that is almost a suggestion that's in there and that certainly w carefully considered all of the issues that n p s raises here those are in particular that the parties were both litigants in the underlying proceeding that was very much for you and very much argued below the fact that discovery had been sought in the taiwan request they sent the court simply asked for certain things and not others m p s did not a to obtain a statement from the taiwan court saying that it wouldn't want this information and in fact the entire verses and the supreme court decision caution courts against inferring from foreign tribunals a lack of interest in discovery or even in some cases affirmatively saying we don't want to have that cautions  did consider that issue in exercising her discovery her discretion in this case does with information then this coverage should not be had and if that were the criteria by which we were to resolve seventy two applications there would not be no disk or government ordered ever it potentially involved any kind of confidential information so that can't be a rule that would preclude discovery in this case in fact the confidentiality question was of concern to the district court and the court did consider all of the arguments of counsel as well as the representations that were made by both parties in the u and by counsel representing out to micro in taiwan that the information would be the subject of an outside counsel's eyes only treatment and that the that to micros counsel in taiwan would ask the taiwan court to keep these things would like to point out two distinctions that may be of help to the court and that is in the case of schmidt's which is the case involving the german government which is like this is breached i believe we distinguish this in  fers but it was raised in our argument here the german government in that case opposed affirmatively opposed to the discovery being sought in the united states and it wasn't a situation in which that was a reason for necessarily precluding rel under seventy two it was however a factor in the court's decision to in its discretion not allow that discovery to take place totally different circumstances here where there has been no affirmative action  or the statement that the court does not want it and want the evidence that has but been sought or that it would interfere with your with the national sovereignty which was the situation in the in the case in the castro case again very different facts in that are located in the united states and we only seek documents located in the united states which are probably beyond the geographic jurisdiction of the court in taiwan which go directly on the injunction violation proceedings in taiwan this by stipulation and i'm telling you in advance you know my kind of druthers of the thing you can appeal that to this court and say well you kind of know what the judge just brothers where so go ahead and hear it right what i'm saying is in terms