points mr hill will follow up on issues related to the deposition of his client's and we reserve five minutes rebuttal joe jordan you know the more things change the more they stay the same for you years ago it was before your honor in the appeal from the related alabama proceeding we raised two issues before your honor then one that the statutory requirement of an interested person was not met and nd that the order proceedings which have still not been filed were not within reasonable contemplation this court reversed as you know on the issue of the interested person because brock i had not established it before the district court and here we go again st point interested person hornbeam fail to meet the interested person  a mandatory requirement why did it and this is something that was noted in the prior decision and footnote two why did it fail because it doesn't exist it's dissolution has been completed under panamanian the corporation has filed for dissolution and has three years to complete that once it completes the dissolution it doesn't exist the court made clear and re brock that the district court was required to make a finding that somebody was an interested person in this case your honor the district court indicated that there was some type of presumption in favor of seven hundred and eighty two discovery there is no presumption in favor of seven discovery to the contrary it was the burden of hornbeam to establish each of the statutory requirements the burden but even it even if the district court's rationale is a little goofy why is that th dissolved entity necessarily is not an interested person not i guess within the meaning of the way we've explained in a reasonable having a reasonable interest in obtaining judicial assistance and i take it their position is well the reason in part the reason we're dissolved is because you sort of drove us into the solution no that's not their position at all in fact after they lost in the b v i and they were ordered to pay over eight hundred thousand dollars of attorney fees that's when they did and they and then they filed this case at the same time your honor the reason that they're not an interested person is because they don't exist but yeah i guess you're saying like as a matter of panamanian law we should just take that as an article of faith i mean don't they have an expert that says that's not quite right and you know maybe this is like in a state or something that survives there are some residuum that survives that could pursue relief your honor we're not asking this court to take anything of a matter of faith we have submitted to expert declarations we submitted four of them the expert declaration from a respectable panamanian attorney which cited the panamanian corporate code which is what governs said that you have three years to file a case after you've if you did that you filed your dissolution papers if you haven't filed it within th years you can't file and you don't exist what is there guys say i mean they've got a respected panamanian judge who you know as something to say for them as well their guy their guy doesn't cite to the corporate in panama he cites to the code that was in acted later that applies generally to companies and that code was it acted in part to to clarify the corporations may file for reinstate three year period has expired so there is a issue of foreign law the courts in seven hundred and eighty two provisions cases practically by definition address issues of foreign law this is nothing that's novel you know the leading supreme court cases intel the supreme court and intel went into an extended discussion of law to determine whether the applicant in that case right had rights to participate in the e u proceedings this before the court before this court and what do you want to do just to decide the issue of foreign logged in novo and decree that your expert is more persuasive than the other side's expert issue of panama law it's a matter of law and your honor whether it's based on the experts waist but whether it's based on your reading of the statute but whether it's based on the presumption and panama that we have here that's a specific government the general your honor should conclude three years to fall the case it didn't is now no longer in existence it's not an interesting person therefore doesn't meet the interested person test and by definition if it's not an interested person foreign proceedings are not within reasonable  vacate the order below and should order that the that the court undo the discovery and the discovery that has been attained should be destroyed what is the our standard of review on the top side before we get to the issue of foreign law interested person because it didn't exist that's the omnibus order your honor because i'm going to speak with lee but no but it's i thought that what was technically appear in it may not change the answer you gave a what i call the topside standard or a review over a motion to vacate that what happened impacts this case in any way or do we immediately drop down to the subsidiary standards of review for every determination the district court made factual legal or makes question you are the district court decided the issue of the application to nov it was an issue of how to deal with the magistrate's decision or rather to get into the issue whether that was a recommendation or a final decision or a final decision the district court just made the decision herself no i know yes and even it right ahead i'm sorry even if horn being canal longer bring a cause of action is it still possible that it could be an interested party oh no it can't be because the only party that can bring an action the b v i and this was litigated and it's in the record in the ohio state court because what actually fall for discovery in new york they took it discover they improperly used it iow they filed an action in ohio it was dismissed why was it dismissed because the court held that hornbeam had to bring its action in the b v i and that the only party that had a right to bring the action the b action since it doesn't exist legally in panama or the bay the i then un that would be our position right that when someone might show i wish they did persuasively just i'm going to sit down i'm sorry for going over but i want to answer your question let's forget let's not forget there's nobody else who was great at discovery here this is different than alabama and alabama the district court sort of drove by the issue of whether brock a had standing and allowed procket to have discovery rights and in this case even though  mr shulman and brock a are quote a pelleas they were never given the right to discovery they did not argue below that they were interested persons in the b v i the only read that is there and it's a slender one and we suggest it's nonexistent is whether hornbeam is interested person william hill on behalf of the subpoena respondents i will address the th point of error raised in our briefs and argue that the district court erred in ordering pre filing depositions from subpoena respondents when hoare being refused to confirm whether the subpoena respondents would be named as defendants in what was supposedly contemplated b v i proceedings but are now revealed to be mythical b v i proceedings or a contemplated domestic proceeding which is what we actually have either of which would make discovery improper under seventy two my argument focuses primarily on the st discretionary factor under intel on federal twenty seven in the public policy behind seven hundred and eighty two i from whom discovery is sought is a participant in the foreign proceeding in the intel case itself on remained after the supreme court established a discretionary factors the district court denied the discovery sought on the basis of the st discretionary factor because in that case the respondent was a participant in the form proceeding so this factor requires the court to know who are the participants in a contemplated proceeding or since since these are as you say just discretionary factors sort of a multi factor balancing test while i wouldn't be ok if the district court to decide the district court the one who is going to balance the factors to decide you know participant not to dismiss really just not going to affect the overall balance for me here so i don't really need to know all there are circumstances in if articulated we could review them there are circumstances i suppose where the judge could decide that even a participant was not that even being a participant should not excuse the discovery going for that would there would have to be findings on that the court has to address the factor and come to a decision as to whether or not the discretionary factor should preclude the discovery is that is that right i mean i would think in a multi factor balancing analysis a court could say i find factors twenty three and four support factor one's a wash and so good to go they are discretionary and certainly in certain circumstances there are there could be reasons for holding the balance one way or the other but but the factor must be addressed particularly here where we raise the issue and we press the court to address discretionary factor number one in the problem here ordinarily the st discretionary factor is not that difficult because you've got an ongoing proceeding and the court simply says who are the participants here with a contemplated proceeding the only way to know who are the contemplated participants is for the court to require the party seeking discovery to articulate who is going to be a participant and who is not going to be a participant and that was not done here despite our demands is it your position that that st intel discretionary factor requires denial of the seven  seventy two application if the target of discovery the nonparty here is likely or surely to be made a party in the foreign proceeding well it is a discretionary factor but nonetheless we we do believe that if what the court has to be able to make that assessment that's our position and without knowing who the parties are the court cannot make that assessment so become are you supposed to know who the parties are before they file suit you ask them you ask them because the only story sell you we don't know until we get discovery then well again here here there were indications beyond we don't know here there was simply a refusal to answer the question and we now know that the contemplated participants included all of my clients because they've been sued in delaware and that's that's simply a matter of the record now it's we know that the contemplated b v i proceeding was mythical and that it reality i see my time as you can finish up please jeff we now know that they were actually contemplating suing my clients in delaware state court and that if this rates the whole basis is for  foreign proceedings not domestic proceedings and it was entirely unfair to submit my clients to pre litigation discovery without even knowing what the allegations would be one sided discovery where they had no opportunity to take discovery of the other side this would never be allowed for american citizens in a proceeding that was to proceed in the united states and that's what happened here they were subjected to pre geisha discovery that turns out to have had no legal basis to go forward and it was entirely unfair and we asked that it be reversed and that the and that the court order that the documents and deposition transcripts be destroyed thank you right thank my name is tucker byrd and have the privilege of representing the app italy for being corporation thing is always helpful having been part of this nightmare is probably a too strong a word but having been part of this thing for a while on the other side is this thing ever going to end your honor i'm going to be here two or three years from now with someone else maybe the same gentleman or maybe some other lawyer saying they haven't filed suit yet that that's a that's a fair question and since i'm new to this case for four months the novelty has not yet worn off i think i know and i know of course from my personal dealings with the client that the climatic conclusion will be reached in the near future for purposes of today your honor i think it's always helpful to have to recognize what this court has said about the purpose of seven hundred and eighty two for instructive a philosophical level one is to provide assistance to a foreign tribunals and the reason is number two to engender a reciprocal assistance from a foreign tribunal by way of an example in the purpose of this us why it has such a flexible feature what the process is not intended to do is to empower court to serve as a gatekeeper for foreign tribunals on issues of the substantive merits for substantive legal issues i know but at least part of the impression that a reading of this record leaves me and it may not be reversible is that there is no foreign proceeding there may not be a contemplated foreign proceeding and there's some stuff going on in the united states and what mr hill said rings true to at least some degree which is it looks like your client is at least partially  procedures which are going to be to help as you said a foreign tribunals so that you can get one sided discovery for related litigation you've already filed against some although not all people and entities in the united states it seems a little bit off kilter well and i would offer this this way to look at this year on a number one i think it's the important thing is to look it is cessation of the application contemporaneously at the time it was considered by the court there's always going to be a danger if you look at an action post hoc and try to attribute things that happened sense to motivations that preceded it for example the facts get developed through discovery circumstances change i mean a merry out of things have happened lawsuits get filed the question is at the time was it reasonably contemplated that a b v i action would be filed and in fact we know from the record that twice before hornbeam had gone to be to try to pursue this and i was i was suggest this your honor members of the panel if one were going to try to get discovery through this proceeding to use in a domestic proceeding i may not be the most efficient lawyer in the world but i was certain thing could be else aside easier to go and file domestically and a set of five years to get discovery remember discovery was just completed last year i probably get in five minutes to a domestic proceeding so the argument that we somehow went through this convoluted process in order to get domestic discovery just doesn't really pass the the logic test can i ask you a question i guess your adversary focused most of his attention on the interested party requirement s or do you defend the district court's reasoning with respect interested party because i take it you don't deny that you've got the burden to demonstrate the propriety of the discovery correct decide i agree with the with the conclusion of the judge i think the analysis is one of simply a prime facia case i don't think it's the it's the promise of the court to decide the substantive issue but so when so just help me kind of unpack this step by step you don't deny that you've got the burden to prove the propriety of the discovery to make the private facia case ok but we'll get to that yes so but when the district court says that the evidence is an awkward pause if you've got the burden that's a problem for you so your response is prime official case right exactly you know but as i read the cases i don't know how you pronounce it clear ricci yes and  iago the phrase prime a face is not being used in the mcdonnell douglas phraseology like kind of sort of you know the you know lesser minimal but instead is being used to distinguish the intel factors it's like the threshold showing and then the does the discretionary factors and if that's right and if you've got a real live honest to goodness preponderance burden with the threshold factors in the district reasoning anyway i'm not saying not saying the result is testing the reasoning in that whole equity thing seems a little off to me well i guess i'll respond in this way or our number one is it be a  if one were to interpret exactly what the panamanian law would be but i think by prime a facial what it doesn't say is preponderance the way they argue in their briefs as if it has to be more likely than not and unless if you look at and  opinions of the two experts what they're worth their expert does not talk about is article eighty six and article five to eight a which justice lopez says the following and you think about it this way at the end of the three year winding up period through the liquidation the into the still has in this is a very very interesting phrase the corporation still has a legal personality it's sui generis it still exist what and what is what is says further is it almost and per really it doesn't perpetuity that the pursued the corporation can continue to pursue claims and to defend itself it cannot conduct new affair certainly but its legal personality all like it can keep going well put it back to you this way if the litigation itself took years made the appeal would take years it could in theory there's no hard fast rule in the statute is simply says the legal personalit as and what does what do you do with the three year period well the three year period it's set some certain criteria about things that it can do but it says at the end of the three year period it has to continue its legal personnel continues for purposes of collecting and also for purposes of defending it has a very narrow a narrower band i would submit and i would say this there's one point about this is this comes out in the record you know they would say that somehow has been dissin body did doesn't exist and these rights then hair in it as the as the register shareholder of the corporation what happens to those rights in the record it's sights of fact that  register the shares in the name of broccoli so they have in essence trying to create what i call for lack of mineral a trick bag they won't let broccoli the shareholder but now they claim that that hornbeam which is that which was the register she don't cannot pursue the claims something would have to give and i think the teaching at all these cases quite frankly is that what the court order to is not serve and decide the ultimate substantive issue that will be an issue  this and we fully acknowledge the fact that we're five years into this and they be the case has not been filed but i would i would suggest this and we know this from the cases the consortium case being one of them the domestic proceeding now the applicant would have to go to the district court and get permission to do that but it certainly is a cub not as a wall way of using the evidence but i think to look back now and say well because you didn't file you never intended to file it i think is not fair to what was before the court in the record and moving on to the it may not definitively answer that question but it pushes the argument a little towards it well it is the further the further the time like the time goes and you do nothing the more it seems like this was not really a legitimate but here's the point i would make out of that you'd have to sort of apply it to what would be the mo then they offer a motive one of the motives they offer is that we did this to get discovery that we could use against that we'd use against the cola mosque if for example domestically well that would make that be the most complicated way to get discovery in existence there why would we go through five years to get discovery that we can get a medal because litigation is not always economically sound and you might be exerting pressure on other parties given the history of these disputes to squeeze on one side to see if you can get leverage on the other and getting discovery when discovery is in one sense of the word one sided because they can't get discovery from you might be somewhat beneficial except for this i can't think of a more inefficient way to get discovery than to go through a seven hundred and eighty two for this reason you have to go to the district where the evidence and the witnesses are to obtain the information that's five separate proceedings i mean if that is a strategy it is sort of a self inflicted wound nobody would logically think i'm going to start a multitude of cases to get information i can get out of out of one case and with respect to the issue about that they make this argument about well it's not reciprocal discovery st of all that's inherent in a seven hundred and eighty two dollars action anyways it is always sort of frankly and finally i would offer this you know because this is the same point that they make over and over again which is listen you haven't filed a b v i action and that the question is at the time this this process began was that reasonably contemplated i think the record clearly reflects that it was sometimes circumstances change and for example you don't know who the p intend to name a uniform proceeding for when you do that according to their logic the discovery would have stopped altogether and you don't have a target letter the purpose of the seven hundred and eighty two dollars is to let you get into the evidence figure out what you have and then proceed from there unless the panel has any other questions with i thank you for your time all right thank you very much ia and if he is well and if he had told me they're going to file what does that do for me but he didn't tell you that because we know that the question is the same because it's an existential unknown he could leave the courthouse today and his client could sam we've changed our mind we're not going to do it right now we're still sort of left in the same place well it is sense that we're not your honor because we know what they have done they knew they were going to sue they sued him in ohio what happened here is they brought five x party proceedings they took discovery in new york we didn't know about it they didn't notify our people of the subpoenas they got the evidence they used it in ohio they got caught we found out about it so there was a watch of to what they were doing once we got involved we opposed the discovery in ohio it was stayed they never took it obviously they got it in alabama and hit it and here we are let me ask you a question about remedy let's just let's say you are right on the motion to vacate what's the remedy for you the remedy is simple your honor you vacate the order grant discovery and by the way there's a protective order here that says they had to use it within a year they didn't that has already expired we're trying to get the district court to order it the story based on that but it's simple your honor they have to destroy the discovery that they have including the deposition transcripts this is though even though the order on the on the initial seven hundred and eighty two dollars application was fina at least not reversible error at the time it was entered it's but in other words you enter an order in two thousand and fifteen that's right at the time it's an ex parte order i know it's an ex parte order at the time it's entered it there's no basis for reversal it doesn't get reversed it doesn't get appealed right in any way shape or form by an intervenor or by anyone else and now you're seeking to vacate that order and you're seeking to undo not to prevent things from continuing to happen but to undo everything that happened during that three to four year period and i guess my it's not a concern it's a question what's the from what place do we get the authority or the power to give you the remedy that you think is appropriate order was entered ex parte we've we opposed it the district court decided to novo she decided she granted the application herself we appealed it if that decision was wrong the discovery was improperly taken no but my question is there's a possibility although i know what i know you don't think so there's a possibility that at the time that initial order was entered the record justified and allowed that order to be entered and the possibility that now if you are correct the circumstances have changed to the point where on a new look you're like ok no but that doesn't mean that everything that happened between two thousand and fifteen and now is necessarily illegitimate i guess is the notion between a voidable and avoid judgement if you're on our air for the analogy but it's somewhat close at the end of the day the order the order granting the put their application was an error at the end of the day to discover it was taken that was in error but you're relying on things that have occurred now to show that it was error then and that's not the way things work because when the district court is looking at or at least not the way necessarily they necessarily work when that this record is looking at a discrete record in two thousand and fifteen things may look may because she didn't accept it because she didn't know whether it was a reporter she didn't want to rule on whether it was a report a recommendation or whether it was a final order so she just did it in nov so at the time the discovery was granted your honor or in being had already dissolved that issue was preserved at the time that she issued that you district court entered her on the bus order so if we were right on our point one change and we believe of course they have the burden of proof they can't just skated by there's no separate standard to say it was an american company that dissolved and there's a statute in florida this in three years and you're done you wouldn't say well you know we're going to hold the americans you know corporation to that standard but we're just not going to take a look at what the panamanian law is this court in my sent my view has an obligation side the issue of law it's the novo and ought to do it now so we don't bounce up and down but judge jordan to your point the discovery was issued based on the two thousand eight hundred order they had to reissue subpoenas the original subpoenas were in she held in regional subpoenas were invalid judge's order says that she finds that the discovery granted by the two thousand and fifteen order is overly broad she did find that she did what's the relationship between the two thousand and fifteen order and the two thousand and eighteen or because she was starting on the tab  with the word taboo tablet she was she was starting on the basis is this is what the magistrate judge did ok and that was what we have ject did too and she said you know what i'm just going to again as i say i'm just going to do that the no i'm not going to accept what the magistrate judge did those subpoenas are too broad these are the subpoenas that you have to issue and they had to issue the new subpoenas but one other point judge i'd like to cite to your honor some cases because i don't i don't mean this in the pejorative sense but i don't think the court should you know put its head in the sand we know what their record is now they didn't file in the b v i they sued everybody that they said they were going to sue in the b v i in delaware and they did they did it this year that's part of the record your  three young to be set a city of a goose to fifty nine f rd one thousand one hundred and sixty all those cases stand for the proposition that if this court can take notice and consider things that happened after the district court ruled if it's to have effect on the decision and you have the are happy we've taken you way over your time no so you've got about thirty seconds to wrap up if you'd like your honor so my point again quickly is that this was  the no vote the subpoenas were issued after horn being dissolved if your honor finds that it doesn't exist in three years has meaning than that then it should be reversed we cite to the six supreme court cases if discoveries improvidently granted then the remedy obviously is that it be destroyed and that's in the protective order itself and i'd urge your honor both in terms of mr hill hill and us to consider what actually happened they didn't file they filed in delaware and it was inappropriate to use this procedure initially to take discovery to use in ohio let's not forget then they took that then and then they filed in london so one of the other motives was to fall in london as mr shulman did and here they are in delaware thank you judge ok mr marks thank you  very briefly as to the requirement to address the st factor the requirement is in the intel creation of the factor itself the whole policy is that when the person from whom discovery is sought is a participant a form proceeding the need for seven hundred and eighty two dollars aid generally is not as apparent as it ordinarily is when evidence is off for non participants so if you've got a participant from whom you're seeking discovery the district court ordinarily would say go get your discovery over where you're having the lawsuit we don't need to be an arm of the foreign court to help with discovery that you can get anyway nd i'm actually surprised that opposing counsel cited the the evidence can be redeployed yes theoretically evidence can be redeployed and under certain circumstances but that's not what happened here here we had a protective order that said you can't use this discovery anywhere except in the unless you come back to the court and get permission and that was not done so this is exactly the opposite of what glock allows this is what cocked warrants can be a problem i see my time is up your honor thank you very much right thank you very much mr hill thank you