allowed to proceed to a full discovery process at least with regard to the actual governmental agents alleged to have hacked into their computer systems if the factual allegations in this case are not sufficient at least to go to discovery against those john doe defendants it's difficult to see how any citizen will ever be able to challenge warrantless government surveillance absent an actual government whistleblowers with regard to those john doe agents there's been almost no argument put forth either by the district court or the government as to why the acts and claims are insufficient they are just the bit in this case for the electronic age seeking monetary damages for a undisputed that although there was a brief window of discovery granted during that discovery because of motions for protective orders and renewed motions to dismiss there hasn't really been any actual discovery there's been one a grand total of one deposition there were subpoenas that were there were documents that were suppressed out of the government which we never received and so effectively there's been no discovery and discretion but in this case she's dismissed saying i was we back to the question my colleague which was about the john doe's and whether or not you had a chance it's a discovery question that's not the ultimate question well so presumably it's a little bit unclear but presumably she is dismissing against the john doe's because the complaint as it stands doesn't state sufficient factual allegations against them under the top of the next ball standard so we would submit that that is not an abus discretion question if we want to challenge the way the district court managed the course of the discovery that strikes me as a different question i think it's undisputed well if you had time to come up with the names which he seemed to think he did then that is a discovery question whether or not she did it and whether or not cheap used to just question is i think that i think that that's her issue too but it seemed to me that we were sort of stuck with abuse of discretion with respect you had three months to get some extra time you had similar extra time and you know i so we would submit that it's also an of discretion because there was no actual time for discovery because although there were three months during that period most of the time was spent litigating the question as you put all that to the district judge say we really didn't have three months i just didn't read the record that way and so you know i know that things are different when you're in the trial court you're going on mounted it but still what we have is the record so what the what the trial council did is to try desperately to respond to the district court's order that he tried to come up with names for defendants he did end up trying to arisan as a name because that was the only one that he was able to come up with but during that time there was no opportunity no true discovery opportunity to come up with names and it seems to me that it can't be the officers right though that case went up to the supreme court and the supreme court didn't say well you haven't named the people therefore we're not going to allow this case to go forward and so i think on either an abuse of discretion standard or on the do novo review ball it seems to me that this claim at least with regard to the john doe's has to go forward otherwise the government can affectively use their refusal to engage in discovery their motions for protective orders and twamley and ball to create absolute immunity a surveillance case because the evidence is always going to be had in the hands of the government there's no way for the aca sons to know who the people are who might have engaged in this activity  i was not trial counsel no they it's important to recognize it seems to me that the allegations that were in the i would say it's a little bit confusing exactly how the court handled this case when whole thing answered yes and i also denied leave to amid so they did not deny so the district that she doesn't really say under what basis i would say my argument would be that it was joined to the twelve b six motion and she's explaining why she is also court like we in the discovery request that your side made were extremely broad i mean i'm not really focusing you i'm just saying that if you don't lay it out it's not there so the trial counsel tr a fly by night person he's done work for the n s a he's a major forensic analyst and he filed a the plaintiff's filed an affidavit saying the requests we are making are the minimum requests we need to do the forensic analysis that would determine the factual basis for our complaint remember on a motion to dismiss we're supposed to take all of the factual allegations in the complaint because true off the legal conclusions but here we've got a huge number of factual allegations that are far more specific than in the twamley for example where it was just you know we think that there was a conspiracy but we don't know when we don't know under what circumstances and we don't have any details here there is a specific timeframe there's evidence connected to or those allegations connected to why the justice department might have been interested in his act at sun and there's the forensic analysis that was done that indicates both that her computer was hacked into and that it was from a government ip address now there may be answers to that there may be answers the government could give though they haven't answered anything yet there may be challenges to mr scantling or the other forensic analysis but that's what discovery and trial is for and we haven't had any of that in this case and the law was a slow stoopid the lawsuit has been pending for quite a long time many years dismissed in may of two thousand and eighty correct but juror in that entire time the only window of discovery was during those couple of months that we talked about earlier and during that period again most of that time was spent litigating the challenges by the defendants to the scope of the discovery requests themselves so in actual fact there has been one deposition and no documents and given the seriousness of the of the complaint and the factual allegations in the complaint it's not the plaintiff's fault that this case has been sitting for so long  there's been a whole set obviously of complicated so you're right there's a lot of this is not their fault but once you get in front of this district judge and then you have these these disputes about what is to be given and you have a hearing on january twelfth right and then the court the district judges the magistrate is unhappy with the progress is being made and tells you your predecessor to focus and you didn't focus he didn't try to sixteen days elapsed after the hearing in which he didn't do anything so my understanding is the trial counsel during that time a file document requests of the government and tried to get depositions of the defendants in this case and that scanned file the same federal court and i take totally take your point that the a lot of that predecessor was not your fault but you've gotten an indication to go do something and you don't limit what you're asking for but you know i i'm not maybe we wouldn't none of us would rule that way but i just think that that since what you're doing now is focusing on the dough defendants it's pretty hard to say there's an abuse of discretion  so again i think that the the because the district court dismissed this on a twelve b six motion it's not an abuse of discretion review dismiss the john doe defendants and we would argue she's dismissed the john doe ily applies to a discovery i think this also would satisfy abuse of discretion standard in this particular case because given the kind of allegations these are hard allegations to prove there's no question right we've got forensic issues we don't have we we don't know who the defendants are it's hard to figure out exactly what you're looking for and so you know the requests have to be relatively broad we have to try to find who in the government might have authorized this or might be responsible depositions were tried to be scheduled but the scheduling ended up happening in mid to late february which was after the deadline so  he tried i think to make that tiny little period of which again the first two months were spent litigating the sco and to make that the basis for a twelve the six dismissal in the case of this import with these kinds of factual allegations where we really have not just a random fishing expedition but we have true factual allegations that go on pages and pages that are built on actual forensic analysis i think that would satisfy an abuse of discretion as well but i also think that because she dismissed it on a twelve b six motion it should not be reviewed for abus meaning the district court's dismissal of each of the various claims including the john doe defendants on the government's twelve b six motion and that that should be removed review de novo as with any  pressure so if you if your honour's wish to think of this in terms of whether the district court provided a sufficient discovery period that the district court abused its discretion in denying the atkinsons leave to amend their complaint and to add rising defense given the extent of the rises involvement was only covered uncovered through the limited discovery provided by the court and given using ball and we think that this complaint easily satisfied the trombley and it all standard because it has numerous factual allegations which have to be taken as true at this stage they can be well i just want to make sure the court understands that regardless of what you do with regard to holder donahoe and verizon there is really essentially no that has been made for why the case should not continue against the john doe defendants because any of the arguments to be made about either bid or electronic communications privacy act wouldn't apply to the john doe defendants and so with regard to at least them we think that it satisfies twelve b six now i can also argue for why i think with regard to holder and donahoe it satisfies twelve b six because a an operation of this magnitude again assuming the facts are true would have almost certainly have to have had the involvement of the high level people within the relevant agencies and defendants and later we found evidence that holder or donohoe were involved we could presumably add them that which gets to the rise and point which is you don't want plaintiffs to sue people up front for whom they don't have sufficient evidence but then if you don't allow them to change their complaint later once they have some evidence then it seems like it puts plaintiffs in a very difficult position where will  they please the court thomas byron from the justice department here in behalf of the government defendants including the former attorney general and postmaster general your honor the plaintiff's counsel at argument today didn't really address with any  claims against the former attorney general and postmaster general the district court here carefully considered those claims and correctly rejected and dismissed them as any questions we'd be happy to address them but otherwise we think that the arguments are adequately set forth in the briefs i do want to address the argument that the plaintiff's counsel did raise this morning but i have to make clear at the outset that we do not represent any of the  doe defendants indeed no one represents them because it's not even clear whether they exist who they were sure it's lawyer but we're here earlier it was not right here but that does go i think to some of the court it we insulate with respect to the john doe to so we do represent the united states and the f b i your honor and to the extent that the plaintiffs have sought discovery from the government we do think that we're in a position to address the questions that the court raise this morning  when i think that the federal government does have an interest in the case management that the district or the case management decisions that the district court is going to road sued yes your honor both the united states and the f say they even exist we don't know the answers to any of those questions and i think this is relevant to plaintiff's argument that there's been some kind of concession and even to plaintiff's argument that there was a twelve b six motion which there was not with respect to those defendants because they were not before the court that that was again the district court's case management function reasonably exercised judgment i think you raise well but you don't have any position to tell us about it being reasonably exercise i mean there is a long history of this case there is a need i wasn't there so i can't tell you whether it was government recalcitrance or lack of pursuing the case on the plane just part but we have this long period and then we have three and a half months in front of this district judge in the rocket docket and we have maybe there's sixteen days when they didn't do what they were supposed to do but i'm not sure that that's i'm just not and we don't have anybody defending that right now are in this court you represent the two individuals yes and maybe the agencies yes i guess you represent them but you don't represent the john doe people because you don't know that they are  ultimately the district courts resolution of these case management questions because of our role in litigating this discovery dispute and the discovery questions that arose before the district court now all that said i just wanted to make clear that we are not articulat it is a challenging problem because ultimately the district court here was faced with a difficult question what to do with these john doe defendants and had to make a decision about how to manage the docket before it we think that decision was respond to the plaintiff's opening argument which as i say did not focus principally on the issues addressed in the bulk of our brief but we think did implicate a significant concern for the government this is though unlike a typical case involving john doe defendants where there was an incident you could say a particular f b i agent was present at an arrest and that individual could be identified to the plaintiffs have not provided even that degree of detail that would allow of someone who's having all of their personal technology that's being compromised allegedly by the government and there's no way are you going to know who to defend  name who it is don't it what what is alleged here clearly and by experts there's no question that computers were being compromised as is no question that there's there are those who can testify that evidence is sufficient and light most favorable  and yet now we're at a conundrum because you dealing with the mechanics of the court and it seems that though the government has played this thing pretty well i mean you kept it at bay and allow a limited discovery in certain areas here and i understand for great purpose could be security reasons other reasons but the idea is that you have a citizen whose rights have been compromised and the law doesn't allow for a remedy someone once said one arguing for who're so the judge when i think you've identified a challenge for some plaintiffs but these plaintiffs identified very little and i'm sorry if i may interrupt just for a moment i don't want to take time that  that is allocated to the verizon defendants to wrap up and make sure they have an opportunity to address the issues raised with respect to their clients the plaintiffs here identified very little you pointed to the complaint where they said it was something about a government fingerprint on software that's that doesn't offer any opportunity to go further and try to identify any john doe defendants they said something about a government ip address again there's there's not a lot of information to go on here but that's a challenge that many plaintiffs face your honor and it's not one that should allow the kind of over broad discovery that a magistrate judge here rejected and as you pointed out in your questioning of mourners may please the court my name is retrial and i represent the horizon defendants who are the apple leads in this case i think it's worth just taking a few minutes to talk about what the district court was presented with and why the district court did appropriately exercise its can you talk a little bit  first of all the real question before the court is whether the district court properly interpreted its own orders what the district court found before it dismissed the first minute consolidated complaint was that the plaintiffs engaged in multiple violations of court orders they failed to take or properly pursue discovery of the john doe defendants which the court admonished them to take at the time of the dismissal of the united states and to turn in general holder and postmaster general donahue they failed honor but my point is that the district court at the time she dismissed the first minute complaint as to horizon found multiple violations of its prior werner's the failure to identify john doe defendants by name the failure to take discovery of the john doe defense the addition of three new corporate defendants plus adding back the united states in the f b i without permission and adding back counts for seven eight that had been dismissed with prejudice then on top of that to avoid unfairness to make sure that there was no is they'd never moved the plaintiffs never moved under rule fifteen or rule sixteen before the district court to ask leave to add the horizon defense that's just a rule of procedure that's a prerequisite to even hitting the question whether exceptional circumstances exist in the district court found that there was a rise of this is i believe the entire case was dismissed the final instruction was  clerk to close the case which i assume would mean with prejudice but it critically here your honor plaintiffs took the position before the district court that naming the horizon defendants was in compliance with the court's prior orders the court interpreted her orders and said that that was wrong and as part of that presentation because we moved to dismiss under rule fifteen the plainest took the position that it was unnecessary to comply with all fifteen and specifically they said that the court didn't need to address the circumstances that that wasn't so so for the plaintiffs now to claim that there was an abuse of that discretion for failing to grant leave under rule fifteen when they told the district court it wasn't necessary for her to address the rule fifteen factures really is a waiver of that claim on reason why i didn't need to write that she did not consider there was also a large image there was an opinion that dismissed the complaint the court i believe that went through very carefully and canvassed her prior orders look at the merits of the claims horizon defendants found that there had been ample opportunity for discovery of the john doe's and the exercise of its inherent authority to manage its docket and for case management dismissed the complaint because enough was enough and on top of that when you look at exactly what was in that first dimension complaint the district court had had a hearing as to whether the united states was a party plain of said the united states wasn't a party she dismissed count seven and eight based on that representation the next day the plaintiffs asked add the united states as a party and leave to amend the district court denied it said that would be a regression of the litigation she was trying to move the litigation forward the next thing the plaintiffs did was filed a separate complaint naming the united states that on february fifth rule thirty six to talk about the various ip addresses and verizon was prepared to have that discovery go forward and plaintiffs never noticed it in addition to arise and it provided discovery on a voluntary basis prior to that so they had information from rising about the ip addresses and what the court found was there had been months of potential discovery and the plaintiffs didn't take advantage of the discovery opportunities that they had and that was part of what informed her overall decision to dismiss them like had in pursuing the suit the government claims it doesn't represent the john doe defendants it can't even accept service of process for the defendants i note that would have been true of devon's itself so it's a little bit odd but it shows how difficult it has been at every single procedural step in this case for the atkinsons to pursue this case even to the point of the government filing an answer which they haven't done because they say they don't represent the john doe defendants and so for a claim of this magnitude with this amount of specificity for the government to at every stage of void even responding strikes me as not something that this court should countenance this court should at the very least send the case back so that there can be a full discovery process to see to tell us to whether the validity we have no idea at this stage and if these claims with forensic analysis and detailed allegations isn't good enough to go forward i can't imagine any surveillance claim that could ever be made against the government which means we have a centrally created an absolute immunity just because the government is able to avoid  defending the case now i also want to say with regard to the question of whether the district court could dismiss foley just because of failure to comply with discovery orders assuming that that were even  discovery orders i would be happy to present supplemental briefing on the question of whether the dismissal if it were for failure to comply is appropriate in this case we would argue that that's not really ho court seemed to dismiss the case though i admit it's ambiguous as to how they did it with regard to verizon verizon was added because finally after one deposition there actually was additional information that was found and the forensic experts looking at the biram deposition determined that there was more information that they had that they didn't have the earlier and that it directly implicated  so it seems to me again it's appropriate to advise that at that stage because that's when the evidence suggested that challenging verizon and was appropriate and that there was an sufficient