the question presented here is what does section seven hundred eighty two require when identical copies of the same document exist poll in a dutch court's jurisdiction and in the united states i have a factual question documents and it goes on to explain that all the documents are in the now the lines and in order to respond here they'd have to you know send them and search him all of that and then in a a court i think there was a statement that well we're pretty sure of there are virtually no documents that fall into this category of copies in the united states so if there are real controversy here i mean is there actually a category of items that exist as copies here documents they are or are they distinctly either here or there let me come to that directly your hon there is a controversy there are documents that are both here and there and i if i can unpack that for a moment what mr schuester said in his declaration in paragraph eight and nine is that for the components that are at issue in the underlying dutch cases there is no one in the united states who works on those components therefore no one in the united states who has access to the documents about those components in the ordinary course of their work that is and remains the case and that will come to an enrollment that goes to why this is a burden for issue subsequently i will come back to that subsequently it was discovered that for disaster recovery purposes for example if there was a catastrophic fire at the dutch facility there is a server that the key group maintains that has a mirror image copy of some of the work that's done in the netherlands so here it is literally bit for bit it's the identical document the documents themselves are all created in the first instance in the netherlands about machines that are built in so you're saying it's not factually and also so we have to say that's correct you're outside ok question is where you have literally the identical document within the jurisdiction of the dutch court so therefore within the power of the dutch court to order produced and identical mirror image copy in the united  but just record why is the court abused its discretion and determining that the appropriate right line is the united states mourners if a document is here doesn't matter if it's somewhere else if it's here produce it if it's not known because that decision is contrary to the twin aims of seven hundred eighty two as articulated in the intel decision and also as discussed in the schmidt decision from the second circuit that we've submitted the twin aims of seventeen eighty two our first to provide an efficient means of assistance to a foreign court with respect to documents that the foreign court can't obtain itself and second to encourage foreign courts by example setting a good example to provide similar assistance to our courts basically a comedy concern these principles limit the discretion of district courts in seven hundred eighty two and are the basis for the four factors that the supreme court announced in intel i guess i'm trying to figure out why there is a limit and seem to me that in tail it was pretty clear that the supreme court was refusing to make any rules and instead said air force factors that a court and they said may i underline that when i was reading it take into account in exercising his discretion and then after saying may then i went through the four factors but it seemed to me there then the first what they were saying the supreme court was the district court has to discretionary decisions to make number one what factors to use in making the decision not even the four because they may and second making the decision under the four now tell me why that says there's a limit because as schmidt's court explained in the second circuit i'm not i mean we're going to give you four factors you can take into account if you want to but this is really a discretionary decision for the district court now that suggests to me that even if i don't like what the district court did if it had the factors to take under the account in making it and it took them into account even if not all of the four factors i was just sustain it because your honor if i can address that what intel says is that the justification for section seven hundred eighty two discovery does not exist in the case where the foreign court has the documents within its judicial i don't think your firm away as you're describing it seems to me that it gives it still leaves room for district court discretion and one one aspect of that is how would the foreign courts view evidence obtained in this way and as as i understand it all three of the foreign jurisdictions that are involved apparently would welcome this sort of evidence and  and that's what support the comedy principle if you're looking at the purposes well your honor is referring to the second intel factor and the second intel factor essentially says is is this the doing of a useless act almost every court around the world would accept evidence and so that's why there are specific evidence expert evidence in this case that suggests that the courts would would welcome this evidence and you were started by saying well you have to support the principles and one of them is cometary so it seems to me if the foreign courts would be happy to receive it then it serves commentate to say what the district court said he the question here is if is first are we providing any assistance at all and that really is what the first intel factor goes to the first intel factor looks to the is the evidence at issue here something that is already within the control of the foreign court and if it is what intel says in that instance is that the need for seven hundred eighty two eight is generally not as apparent in other words the underlying justify the well that's one of the underlying justifications i know it's not as apparent but it isn't a bright line rule that says if the documents are elsewhere that's the end of the inquiry there's nothing in the intel to my way of reading it that says that's the end and you don't look at the other factors and you have no discretion we're not arguing for a bright line rule your honor what we're arguing is that the courts below did not appropriately apply the law of intel to the specific facts to th this case because they did not recognize that the that the documents the identical documents are within the control of the foreign court and to me seems to me that your total argument is that the dischord miss w suggested fact i have a tough time and understanding how one has miss wade had suggested factors and still has abused the discretion if there was a bright line rules under which i could suggest they didn't miss way they made a mistake the bright line rule says this is the way it is then i can see where they might have abused their discretion but if the total is just a mis way how is that an abuse because it is we're not arguing that it was a mis way it is a mis application of the factors and so for example one your honor if i can take you to the castro case which was decided by the seventh circuit in that case that is one of the few cases that we found where the facts are the same in that case there was a company joy global in the united states it had a subsidiary  australia named joy as well and the question was should we wear the same documents for both companies the seven hundred eighty to allow production of those documents and what the seventh circuit said there was it would be an of discretion to order joy global in the united states to produce the documents because those documents are already within the judicial power that sounds like a bright line and that seems to me to be a misreading around it is it is the correct application of the four intel factors to the specific facts that we find in this case well i guess but when when the standard is abuse of discretion i really have difficulty with some argument that says well another court decided in a different way because there are often situations in which either answer is permissible have the district court gone the other way in this case i would have difficulty saying that was an abuse of discretion but i'm not sure where that gets you well if i can the the issue is that if we look for example to the arizona court and i'll focus from an on the first factor in the third factor the first factor under intel the court said if it's equally accessible in the netherlands this isn't the first written decision if it's equally accessible in the netherlands then it should be produced under seventeen eighty two then the issue in the motion for clarification was what do we do where it's in bold plates and at that point the court abandon this idea that if it's equally accessible and said well i'm going to impose a bright line rule that if it's within the united states it has to be setting a good example it is not a good example to encourage a company like nikon to evade entirely the dutch procedural rules that govern discovery those are those are cited in our brief there is under dutch civil procedure articles ten one thousand a i believe it's a three six a and they set forth specific requirements for discovery of the libby isn't that exactly the point of that criteria of encroaching foreign countries by setting a good example to show how much you can learn when you have as broad a discovery as our rules permit well in fact the way that the dutch court system is set up is quite different from the us system and its rules apply to the system that they've set up and they have specific exclusionary requirements so there is something called a legitimate interest test under those rules that have to be met before the discovery is granted and if the and if the discovery is allowed here in the united states of just documents in the united states perhaps with that broader discovery we that's not the correct analysis because if you actually look at it from an inverted position where it's the u s court it would be like saying there is a privilege against discovery in the united states let's encourage a party to go to a country that does not recognize that privilege to get the documents and publish them so that then once they're pumping you know there's there's no claim of privilege here this is all about burdensome and i mean if there's a kind of privilege that's not before us right well the argument below from nikon was we could not obtain if we had to meet the standard in the netherlands we couldn't obtain these documents it's not my question is there a claim of privilege it's not a claim of attorney client privilege and i'm burton you mentioned very early on in your arguments that there was some burden some of this to gather the documents that are in the united states can you tell me what specific evidence is in the record that was presented to the district court that would support a finding of burdensome this yes there are three issues there your honor the first is if you look at this like the creek case which is analogous here part of the burden is and this is also in the for her escapes from the seventh circuit part of the burden is the mere fact that we now have three cases that s m l and its customer globalfoundries are involved in when the documents themselves are actually in the netherlands but is there any specific evidence in the record here before the district court there that it would be particularly time consuming and or expensive and or difficult and burdensome to do the search there is than those three points  first it would it would be a smell in the us and this i'm pointing to the schuster declaration paragraph eight and nine if the mill in the us doesn't have the ability to understand what documents are responsive it would have to go back to the dutch engineers and scientists to build the accused products have them try to figure out what's responsive have those documents identified back to the united states to prepare deuced in the united states only to get shipped right back to the netherlands that's one the second is that if you look to the creek case and if you look to for example judge posner's decision out of the seventh circuit in her if he says that exact circumstance would be an abuse and it would be and then the third issue is that if in the correct course this would have been dealt with in the case in the jurisdiction that nikon chose to bring as its merits court in the netherlands now we've had two additional cases we've had this case for us and the globalfoundries case that have increased the burdens and as of so the only burden that i'm really hearing with any specificity is there's nobody in the u s that can figure out what response of we'll have to ask a dutch engineer well it is also all of the time and effort that distraction of the folks who are here in the united states doing different work that they now can i that's my question how much is that because i've heard a lot of discovery disputes sometime or steers a lot of time and effort that's involved other times it's not what evidence do we have in here that in this record that there's a lot of time and effort that will be involved in required it is at least two things your honor one is nikon's own statement that the machines that are at issue here are some of the most complex machines in the world that is literally true doesn't mean it's hard to find pataki months relating to the well nikon has posed eighty odd parts to its requests that call literally for every component within the machine whether they are used or not and we have a server in sitting in connecticut that has at least some amount of material relating to that and that the people in connecticut  that there's no evidence in the record that would in any way estimate the quantity of responsive documents or the person power or hours required to gather and then review those or the efficacy of making you know having that  initially by a computer by inserting keywords that could pull those documents of the phone to the forefront and we don't have any evidence of doing we don't have evidence on the dollar amount or ours or the efficacy of a computerized search but what we do have is that the people who know where the documents are and who understood and the structure in which they're maintained are all dutch people and so in the first instance those folks would have to be consulted to figure out where to even look and that is inefficient that should be controlled mr pena sure i do want to i would briefly address the standard of review issue which is unique to the california case and the california and that case that's an additional reason that the  decision below should be reversed because the standard that was applied by the district court judge judge freeman was incorrect when reviewing the magistrate judge magistrate dispositive under the reasoning of flying correct your hon had met bulldozing it isn't supposing flamm is not to the contrary that this is not dispositive then the decision is correct i believe your honor it is binary either it really if you will looking at a district as functioning as the district court decision it had been reviewed thereafter by clear air by the district court and we went right to the magistrate's decision reviews that for abuse of discretion in four pillars i don't believe this issue was presented i don't believe there was a challenge that said it should have been it an overview it doesn't matter whether it was challenged it matters i look there to try to find what we do because frankly discovery disputes are not the ordinary dispute these are kind of coming down that if you're going to go to another court and ask for discovery the fact that that court makes that decision makes a final and dispositive tory or if you go to that other court and look for discovery and they make a decision but it really doesn't have anything to do with the dis disposition as to the real claims or what really happens all are trying to do is just get the discovery done you've got to determine whether that's dispositive or non dispositive but you're right and we do that every day and we say they're non dispositive but your honor the difference here is that globalfoundries as nikon points out isn't involved in the underlying merits dispute the only question for globalfoundries is the question that the magistrate judge decided which is is globalfoundries going to be ordered to produce or not and here  to make decide whether they're to produce or not makes that a final decision i'm applying the functional test of slam and i'm saying if you have to is there any other question that the case that was against globalfoundries issue that is presented by that particular case against global foundries there is nothing else to be decided as a global and so and the finer stand here argument and the entire case number is over regardless of what how we label it that's a part of the argument your honor and it also if i can take your the court to the premises case in that case the logic was that the magistrate judge decided the seven hundred i'm sorry a decision of the seven hundred eighty two issue is final and therefore appealable that gets that the difference in standard is what gets at the difference between article three and article one alright if it's an article three judge making the decision it's appealable and final and that's fine but if it's an article one judge who's made that decision and then it's being objected to in front of the district judge then because it is final because it is  foundries in this case then you are under twenty eight u s c six three sixty one b and rule federal seventy two b three although twenty eight u s c section six three six by itself doesn't speak of claims or defenses right for that you need to go to rule seventy two for the distinction between dispositive a non dispositive rule seventy two teaches us and tells us that for something to be it has to be dispositive of a claim or defense and what i'm hearing my colleagues say and i'm not hearing a response from you is that if it doesn't dispose of a claim or defense and under rule seventy two it can't be dispositive but it does as to global foundries because the only claim against global foundries is produced discovery if any only and if you don't so you're saying that's a claim what's the definition of a claim in that context it's definitely a request for discovery or a demand for discovery what definition of claim are you using and what's your source for you to say that that's a claim that the definition of using is what is the relief that is being requested against the party that you hear a case that would suggest that the claim stolen my question i'm gittin fine one i didn't find it is a claim i didn't even find as a defense and therefore i worried about your argument under rule under seventy two i don't believe i don't believe that we at least we have found a  case that resolve this issue in the ninth circuit and so i don't find one the result of the other places you see if we're trying to interpret rule seventy two of the federal civil procedure we look to how the words claim and defense are used in the federal rules of civil procedure and the only way that i've seen it there is as a claim for relief work for a claim upon which relief can be granted and here and i believe this is testing on memory but i believe that's rule four and here the only claim order from a record that is fired now i'm sorry go ahead how would you deal then words so in normal let's keep it all united states a rule forty five subpoena to a third party in another jurisdiction we've got my case in oregon somebody in my case wants to subpoena a third party in idaho and there's an objection there it has to be resolved under rule forty five now know you go to the courts where the subpoena recipient is that's in the only thing that is now in idaho is a dispositive or not dispositive the difference is that the subpoena in that case issues out of the underlying case it's all one case where the claims in that case the the merits based part of that case is in front of that same judge now you resolve it in idaho but the subpoena is coming from that same cable in that case it wouldn't be dispositive in that case for that reason it wouldn't dispose just because subpoena came out of the oregon court but seven hundred eighty two is a different animal well i understand but seventeen eighty two is trying to do the same thing that we're talking about as relates to the subpoena we're talking about as it relates to discovery between the states and that's why i said in those issues in those cases we don't create those as dispositive and all but respectfully are the standard that is required to get discovery under seventeen eighty two is quite different than the standard that is required under rule forty five because then there's a different standard for the discovery you can get it changes whether it's to spazz of the of or not no it's that it changes whether you will motion to compel the person to come to the to the discovery deposition is in that he stiction it's not in any other jurisdiction but the underlying case i believe you pose that it would be in oregon the underlying case in oregon from which the subpoena issues remains a case about the full marriage and here the order exists apart from the foreign proceeding  it doesn't come from the dutch court exams from this court that's correct the seven hundred eighty two originates because a claim is filed in california when i ask you another question about the second case assume for the sake of this question that you are not successful on the dispositive motion issue are there differences on the merits between the two cases that you would like us to take into account i believe your honor with respect to the analysis under the intel factors in the california case well there are two things one is we saw from the from judge freeman's opinion that she said simply if it's in the united states you have to produce it and that is not a faithful application of the intel factors i think that the arguments for why run in parallel with the arguments that it is not explained in a way that is full and responsive to intel but that otherwise there are similar similar arguments that you've been making it is that in in the california case the rule that the magistrate judge applied is essentially a bright line rule that says if documents exist in the united states they must be produced and that is inconsistent with both the twin aims of seven hundred eighty two and intel's articulation that if the documents are also in the foreign jurisdiction in that case the justification behind seven hundred eighty two is diminished we also need to look to what happened in terms of of voiding the foreign courts own proof gathering processes and then we also have to look to the curtain issues and in some senses because globalfoundries is a true third party and nikon's argument is only we want whatever documents you obtain from at the mill and v the dutch entity that's what they're after they th ink that a customer has documents that it obtained from the party to the dutch case the burden issues are more substantial for and all but in fact all of the actors are more unapologetic can't be that hard i think t say give us all documents you've got from the dutch company well you either know where they are and you produce them or you where you don't have them but that's a more akin to federal rule i believe it's twenty  six so i agree with the concept that discovery from a third party prime a face is more burdensome discovery reported i guess i get that yeah but here if all that you're asking global globalfoundries for is give us a copy of what you've got from the dutch company that doesn't sound very burdensome from a third party or anybody else i'm mistaken in terms of the volume in terms of it really comes down to this same evidence is available more efficiently directly from a party with burdensome because this can be no no turning client privilege if you got them from a third party so you look for the documents you got from this third party you then produce some of the birds but it is disruptive to the engineers and the folks who are working at globalfoundries to have to go out and figure out ok what do we have from smell and the that would be responsive on these specific components that are at issue in the form and there's no evidence in the record if i understand it correctly that says that that's more than you know one hour or x hours we have no evidence at all this is how burdensome would it be to go look for it if if the court because if we affirm and you actually have to and globalfoundries actually has to go look we have no evidence of whether that's a thirty minute search sure a thirty hour search or a thirty day search do we i think on the global foundries side the evidence is less powerful candidly i think on the ethanol side it's more powerful because what you have there  is if you step back to what what are the actual accused products they are machines that are kind of the there they would fill this room they are the size of a tractor trailer truck the trailer part anyway they as the most complicated machines in the world and they are they are machines that cost upwards of thirty five million dollars to purchase and they are because of that complexity there are thousands of engineers in the netherlands who work on those and those machines and have figured out how to make them work there i believe somewhere on the order of a dozen to one thousand different machines that issue and all of the documents for those machines originate from the netherlands and the people who understand what those are in the netherlands you know and so you know i think we understand your position on that because you've talked about that earlier in your own over your time for the two cases combined thank your honor may i please the court i'm joseph palmore here on behalf of nikon both district courts acted well within their broad discretion in ordering discovery under section seven hundred eighty two both courts considered that the intel factors in both courts carefully tailored their orders to reduce the burden on s m l us and global foundries no court of appeals has ever found an abuse of discretion under circumstances even remotely like these and indeed this court's most recent published decision on hundred eighty two which is a caveat versus fiber gen found no abuse of discretion under materially identical circumstances if anything the case for the petitions here was stronger than it was in the caveat i'd like to talk about that in a moment central argument is that there is a bright line rule i think i heard mr dowd this claim that he was saying that there was a categorical prohibition but if you look at page twenty five through twenty six of his reply brief it stated there they say when the court that would receive the evidence requested under section seven hundred eighty two can itself order the same discovery that court and only that court that's in bold and i tell should decide what discovery is appropriate that is one that certainly is the first factored in to there so it seems to me there's surely correct about that factor and i respectfully disagree judge graber my estimate we have not we are seeking documents from non parties  globalfoundries is not a party we are seeking documents from us and to these we are seeking documents that are in the us and these these are not parties to the foreign proceedings and a kid so wait a minute wait a minute does that mean that the dutch court is has no jurisdiction to order these documents produced the dutch court i don't think they've ever argued that the dutch court could order production from these us and to do you know many or not i question that documents in the u copies here when i'd like to dispute the premise and i'll come to that in a moment it's not all the same documents but taking your question the dutch system is very different it's a civil law jurisdiction so yes in some sense the documents that are there are theoretically within the jurisdiction of that court but intel talks about this this is why we have section seven hundred eighty two civil law jurisdictions don't have discovery systems like ours the fact that this foreign tribunals doesn't have an american style discovery system does not make use of seven eighty two circumvention the second circuit decision in nice is instructive on this point circumvention means something very specific in this context that means if there is something like a privilege or if the foreign tribunals sends a letter or files in any case briefs saying don't provide discovery this is going to interfere with our processes schmidt which mr dowd mentioned in that case the german antitrust authorities sent a letter to the district court and said you're going to interfere with an ongoing criminal investigation if you order discovery of these documents and that was circumvention here we don't have anything even remotely like this to the contrary we have evidence that all three tribunals will gladly accept this material there i think that i think to go to the second factor if we go back to first factor i agree with you that they're not part before the tribunal but it seems to me that what they're really arguing is they're saying we're not party before the tribunal are they in nonparty over whom the tribunal has control perhaps that what that is what they're saying or they're saying does that try to you know have some way of getting the documents i mean my my my view of what their argument is we're not a party but we are a non party over which they have control and therefore you can get all that in the foreign tribunal well that's not certainly not true as to global foundries there's no corporate privity between globalfoundries and s m l and the second that was the same argument that the respondent and a caveat made they said you don't need to provide in that case they responded there was actually a party and said it was an abuse of discretion to order discovery from me because i'm a party in the european proceedings and they can get the documents if they want and this court said there was no abuse of discretion and it was if it was a deferential review as is appropriate of a discovery order the what the court said in the cave is the district court considered the factors i didn't even expressly consider all of them but it considered most of them there non exclusive and it was a reasonable determination and that's what we have here i would also go to the facts of intel itself intel itself  party it was being investigated by the european antitrust authorities it had actually a m d because they did a m d had filed a complaint and he had asked the european and i trust authorities to order production of the very same documents and the european antitrust authorities had said no we're not going to do that right now but they could've they had power if that was dispositive if the european antitrust authorities control over the documents were dispositive the intel opinion would have looked very different and it would have been much shorter because the supreme court would have relied exclusively on that but it didn't it didn't find that dispositive instead it laid out a series of non exclusive factors even putting that aside and even accepting as true some kind of rule like this contrary to intel contrary to a caveat the argument completely ignores the fact that there are three jurisdictions with pending cases it's not just the netherlands we have proceedings in germany and in japan there is no argument much less evidence that any of these documents are within the jurisdiction or control of the of the tribunals in germany or japan and there's no support for the idea that says a seven hundred eighty two petition must be denied and that it's an abuse of discretion to grant that when the party could go to some third contra country and theoretically get the documents that's not the way that section seven hundred eighty two works which make sure i understand the facts though because i think i heard of someone's council say that that i hear that correctly from appellant counsel i believe you did hear that correctly and that is not correct the best evidence of what we're seeking is the document requests themselves those already are four hundred to four fourteen for a s and now they're in no way limited to l and the documents they are were asking for manuals guides for what is in the us does is it installs and maintains and repairs these very machines in there is evidence in the record here of job postings for engineers they're looking for expert customer service in juniors who do that maintenance work and they will undoubtedly have documents that they use in their day to day work maintaining as counsel said these highly complex very expensive machines we also cite the fact that they write reports so there's this idea that they're completely coextensive is incorrect with respect to global foundries as well global foundries is operating these machines many of the documents would be easy to find because there are things like manuals guides photographs but they may have other documents as well that they could have created in their own day to day operation of these machines for instance we've asked for maintenance records that's in the record here those obviously didn't come from  v so this idea that we're only duplicative lease seeking documents that are in the netherlands is not correct now we will there be some overlap of question i think i'm looking puzzled because you seem to me there were initially three categories of documents there were things that were found in the united states that are either unique to here like the maintenance records or presumptively uniquely in the united states there were documents that exists only in the netherlands and there was this category overlap and i thought we were arguing only about the overlap that is and mr downer can correct me but i didn't think that there was an argument that it was improper to order discovery of the documents as exists solely within the united states so i mean what you say this correct i think there were three categories but i thought we were only arguing about the middle category but i may be wrong while mr downer can clarify what his position is if you look at the conclusion paragraph of his blue brief he said the order should be reversed and the petition should be denied in their entirety those are his words so i don't know what is position is with respect to uniquely native documents but that of course isn't the line the district court in arizona drew a sensible line between and he said this was a partial win for a s m l we had asked for more we only got documents that were in the custody control of s m l us in in the united states that was the line that the district court drew in it's reasonable and it's like you only as far you didn't have any more no i don't the third factor is this an attempt to circumvent the four and prove gathering restrictions seems to me the argument of your opposition is that's exactly nikon shoot shows if you will of fast track procedural mechanism based on their choice to me about short first of all again going back to the second service decision in nice circumvention mean something very different in specific here means circumventing a specific policy or rule kind of like a privilege or there's an a brief or a letter saying don't provide it we don't have that here in fact we have uncontested evidence that that the material would be welcome on the dutch procedure in general under that procedure as our expert lays out in their expert doesn't dispute we filed our complaint and we had to file evidence to basically show we had a prime prime a fashion case that this that we had some some support for what we were alleging part of the fast track procedure yes but the but the dutch proceedings allow for the introduction of later evidence and there is no suggestion here that the dutch tribunal wouldn't accept this evidence and this whole fast track argument also ignores the german deadline which is actually earlier than the dutch deadline and there's no fast track argument there with respect to germany and then we also have the proceedings in japan the mr dowd has mentioned i mentioned the her a s case from the seventh circuit repeatedly in his again here today to her a as a case it's critical to understand found an abuse of discretion in the denial of a seven hundred eighty two petition and again the respondent there was actually a party to the foreign proceeding so was within the jurisdiction of the foreign tribunals and what the seventh circuit said that was a case involving litigation proceeding in germany where the seventh circuit said was it was an abuse of discretion for the district court to deny that petition despite the fact that it was a party because there are limitations on discovery in germany and there's really no practical way this party could get that material in germany so far from being circumvention the seventh circuit and her re s which is i think the most cited case in mr dowds brief held that those limitations on the kind of positive authorization to provide discovery were a factor in favor of allowing discovery in this case that would apply only to you or us only documents right it wouldn't apply to documents that are held in both the u s and the netherlands correct i think that would i think it would apply to both your honor but of course i don't have to convince anyone that there was an abuse of discretion which was the barrier that that had to be surmounted in iraq because here both district courts found the same thing in an abuse of discretion means that no reasonable jurist could come to the same determination when you actually have to addressing the pretty much the same issue simultaneously or virtually simultaneously come to that same determination i'm  rry hard to i want to ask you about globalfoundries and the question of whether they ruling is dispositive or not to take your argument that it is not dispositive would mean that in every discovery dispute under the statute it would never be a dispositive ruling that would have to be reviewed by article three judged  at the end it's either granted or denied and the case goes away there is nothing else so i'm disturbed by that and i don't understand why for purposes of dispositive no if you will i'm not sure that's a word but this doesn't count as a claim for relief that is our demand discovery and either get a yes or no answer and why we wouldn't expand flamm to that situation your honor i acknowledge that it's as course an unusual situation it's an unusual statute but it is that bottom a discovery statute and magistrates disk decide discovery questions every day expensive ones where congress and the supreme court of told us that this is really a matter of company with foreign missions and and you know other values that are considerably different it seems to me it's one that the supreme court has said has to be construed liberally in favor of discovery and i think but the key question under flamm is the connection to the merits and rules seventy two is the court reflected in its questioning talks about dispositive as to a and there is a claim in the sense of we demand relief we want something you came to court because you want to do something in the something you want to and was discovered and you either get it or you don't but the entire case number goes away when this  over and i have to fuck up the scene why that doesn't count as a claim for this purpose in this very very unusual in fact probably unique sort of situation well your honor because the names and defenses are being adjudicated somewhere else so to say it really is does so really though you're saying then that we never will require an article three judge unless it goes up to us to to to consider this question no matter even though it's incredibly important we just sort of have maybe supervisory authority by article three judges if there's a clear error by the magistrate judge that's good enough well your honor third party third party discovery can also be important in implicates sensitive issues and those are non dispositive the eleventh circuit has squarely held that these seven hundred eighty two decisions are non dispositive every district court in this circuit applying this court's decision  factors that we would have then seen one can argue to the district court well that was a dispositive motion because now we have no chance of getting anything you should review what they novo i mean no disrespect but i can vent envision that what one can perhaps obvious the hype always hypoth eyes hypothesise counterfactuals but that's of course not where we are here but the next time and if we had made making that argument we would have been running against the tide of every single district court in this  decided it applying flamm we would have been asking this court to create a circuit conflict with the eleventh circuit that position also would have been inconsistent with this what this court did in four pillars as the as your honor just four pillars i thank i think you can i can sort of read it both ways i don't think it's entirely clear what the district court did and it certainly was not brought up as an issue on appeal one way or the other that is that is correct that the district court denied  reconsideration which is the language to use for a non dispositive order but more importantly this court reviewed the magistrate's order for abuse of discretion which is only consistent with the view that it was not dispositive if the court doesn't have any other questions on honor it's possible to come up with possibilities of different ways that things could have unfolded in the lower courts in four pillars the fact is though that the court did interpret it did apply an abuse of discretion decision started standard to the magistrate order and district courts around this circuit looking at that not just that but also looking at flam and the functional approach have consistently held that these orders are not dispositive like other discovery disputes like third caveat who was a party to the foreign proceeding made the very same arguments that mr doubt is making here today and said if you want these documents you should get them abroad they have jurisdiction you're going to open the floodgates to the u s  if you grant discovery here and this court applying correctly the abuse of discretion standard set rejected that argument and said no the courts here the district court here looked at the intel factors didn't  addressed the first one but looked at most of them and came to a reasonable determination and that is the that really dictates the result here if anything the case for the petitions here is stronger because we sought the discovery only from non parties and we have the three different countries that are looking at this this is a global multi drug stiction all litigation and it's they and they are relevant documents from us and cities in the united states this is a heartland case for section seven decided on that discovery dispute with the ninth circuit panel then have to review that discovery just no no your honor i think the abuse of discretion standard within applied to the district court's decision if the  court has no other questions we would ask that the court affirm we also appreciate the dramatic expedition that the court imposed here with respect to briefing an argument and i don't want to be presumptuous but if the court is going to  differ on the outcome of the facts that were presented there which is an indication that she would have come out differently you know in this context reflects the sort of balance of power between article one article three rather than a sort of standard substan question like whether summary judgment is warranted exactly correctly i want to just hit a few points briefly the first is to confirm judge graver that you are correct this appeal is about that third that middle category the overlap question to this panel is if the identical document exists in the jurisdiction of the dutch court and here in the u s and no case before this case has ordered production of identical copies in the u s this would be a dramatic expansion of and the japanese patent office and the specific finding in akiba in this is from page one one one zero neither office has the stablished procedures through which the kiva may see discovery of potentially information located in the united states for use in those foreign proceedings so in akiba there was not the foreign tribunals had no ability to order the discovery and therefore it is irrelevant here the more relevant case is testable which is a seventh circuit case in kestrel there were two categories of documents documents that were unique you need to the united states and then the second was the overlap category and this is kestrel and page four zero six addressing the overlap category so the question is quote joyce may have a originals or copies of some responsive documents so we must consider the possibility of remanding with instruction to determine what responsive documents if any joy possesses in the united states so that the question was do we need to remand to see what to do with the documents where the that's the same question we have here and what the seventh circuit says is such an exercise would not be productive however because it would have been an abuse of discretion for the district court to order their production if this panel goes with nikon's argument there will be a split between the ninth circuit and the seventh circuit and we would submit also between the second circuit which decided the same issue the same way in smith's decision