that is correct and that is a difference but if you look at the underlying analyses both in the statutory factors in the intel factors the findings that were made by the seventh circuit and this circuit with respect to for example rest attempts to circumvent form proof gathering well except judge roof was concerned about the fact that biomed been found guilty of of misappropriating trade secrets and that was that influenced her somewhat like the four pillars so with respect to biomet switzerland the second stage of the proceedings i'm going where the trade secret claims will be being litigated judge ruth brought up the context of the prior finding as other b entities in the context of stating that it would be for example intrusive or burdensome to allow bias whistle and access to certain information that may be confidential information of her arrests and what i would say is to deny someone who is a defendant in the underlying german proceedings asks access to information that is absolutely critical to its defense in that foreign proceeding because an affiliate may have been found guilty of misappropriating trade secrets leads to an absolutely unfair result is so critical to its defense why did it wait so long to seek the discovery with respect to biomet switzerland again biomet switzerland was the phase against climate switzerland didn't even begin until the german supreme court refused to take the case so that did not begin until able to learn for the very first time of the existence of this quite honestly critical evidence to us the facts through those public filings we were able to learn that s k they come into possession of about that when that obligation was filed there was a cover letter written but the application did not include the local rules requirement of sort of identification identifying the proceeding it was associated with the case gets assigned to a different district judge the petition is granted judge roof biomet switzerland didn't object it was always anticipate so answer judgment calls question if you please what do we do about the protective order where where your request is essentially asking that that protective order be disregarded be circumvented and allow production of evidence that has been explicitly precluded from the vitamin i would say it's not circumventing the protector protective order what it would be is this district court judges always have the ability to modify a protective order if the appropriate way to deal with this is to modify the protective order and impose restrictions on by a mess with still is a billion of use the documents may access the documents sure she would appoint a master to review the documents make sure they actually are privileged and you know confidential if you will i don't even know if that's necessary because in the other cases where this was seventeen she discovery has come up the parties and designated materials confidential the been protective orders in place and there really haven't been many disputes as to whether certain types the party intervened and the opponent of the discovery said that instead of intervening to modify the protective order this should have been addressed through seven hundred two petition the court said either way  application casts of things wrong she said it was a german criminal appeal that's absolutely correct and in fact that guided her unfortunately analysis this locus on purported delay if you look at it judge roof in her opinion and it permeates medical's brief is this concept of bias which one seeking discovery lends and in reality there was no we weren't seeking to use the information in an eight year old criminal appeal rather we were looking to use the information ok let me ask you it's unusual that a law firm and it's not unusual for a law firm to get a subpoena but for s camps lawyers to get the subpoena you know it's a total third party it's very different you have any authority for a given case but where the problem came up here in your honor is when there was an analysis all of that issue judge rufe focused on hypothetical concerns of purported collusion instead of being faithful to intel in as as judge posner noted in the seventh circuit opinion in indiana application right about him at that time could have conditioned its production its document production on reciprocal broad discovery chose not to do that just doesn't help you he said do not deny access through question a subpoena we have discovered tools and you can figure out how to drill down and make this this type of discovery of value does indicate that narrowing polygrapher on you does indicate that narrowing the subpoena is preferable to question it but intel itself so as justice ginsburg says that an overly broad and intrusive your intrusion is more issue than to materials that i am it is specifically precluded from reviewing under the trial court's protective order by agreement you know it's not a protective orders are very often drafted by parties you know come by our holding hands we're going to keep specifically understood that time the biomed might have a switzerland might have a need of those in terms of you have somebody could be the judge roof looks at the documents or has a master look at the documents with that in mind and still says sorry we're not you know you're not going to have access to these but there might be a few documents in there that would be critical to violence defense why doesn't biomet have the ability to have that review undertaken that's well first i want to get to the residency issue in a bit but to address that question this information by about switzerland another entity should it was although phase two of the proceedings hadn't begun it was already involved in those proceedings that was two thousand and fourteen and it didn't it brought this on the eve of this hearing in two thousand and seventeen and there is a real time in this issue because the frankfurt court's opinion came down in two thousand and fourteen so it was on notice that it was going to need this discovery if it really did need if i could talk about the residency issue briefly because this is a threshold issue i suspected for a requirement right there's absolutely no court of appeals in this country that has held that a company that has had a legal transaction here one forty two under the german rules of civil procedure allows a litigant in germany to identify specific documents and ask the court to order its appointed to produce identifies so you say i want the memo from john smith specific documents attached to a sanctions motion now we pointed out that by now they neglected to attach the special master report recommendation denying that motion saying it's mis characterize the documents we did but in any case there are specific documents and they could be requested in germany there is no dispute this kick in the first circuit case in for a us this court noted specific documents can be requested in germany not before their application not after not until today never has by him and switzerland ever requested these sanctions documents from her a s in germany and they could so justified the scope of that subpoena or offer to narrow it there's there's court can do that that's what judge posner said there are discovery tools that the court can do that court can look at four thousand documents or two hundred documents and give them ten or give them time the court can and certainly there are a couple of cases suggesting that it's preferable that the court do so but there is no requirement that the court do so as you tell says unduly intrusive or burdensome request may be rejected or tripped and that's under the supreme court's precedent so that has never ever proposed a narrowing of the subpoena it's never said well judge you're right this could be in the us can case this really irrelevant to what we just heard isn't there a problem with judge roofs pinion in that she clearly didn't understand or at least articulate what was what was going on she talked about a german criminal appeal point is well taken in that there is some imprecision in her discussion of this foreign tribunals and that may have been due to imprecision and the parties are either something wrong going on here and yet had by that switzerland ever been found criminally or civilly liable so i think that this is amply fleshed out in the papers before this court by either side but the allegations that are going forward against by him of switzerland are based on precisely the same allegations that formed the basis of the criminal judgment i believe that i believe judge rufe did understand because that was by much switzerland's briefed to her that these documents it was contending were important to its defense whether in a criminal proceeding a civil proceeding so they were saying these are important but she weighed all of the factors and i'd like to talk briefly about intel factor three here because i think it really does get to the sense there is something rotten in denmark that factor doesn't look just to circumvention of foreign discovery rules it says you have to consider whether the application violates or is an attempt to circumvent policies of a foreign country or the united states and in this case judge roof was terribly concerned about circumventing  discovery policies actions the protection of confidential information and in particular the protective order that she had entered and the sense that this protective order was somehow happenstance is incorrect it was a highly  wasn't but it was in full it was it was not in dispute that it was it in full discussion with ask him about this case judge them and decide that you have to say listen i entered a protective order before and although biomet needs these i've gone when was that protective order and the protective orders entered in two thousand and fourteen i believe perhaps two thousand and fifteen but and so that finally that's that's the final that third factor the fact that this subpoena was directed great deal of pause under intel factor three so intel factor one intel factor for intel factor three all of them weighed in favor of the exercise of her discretion here not to allow this application so i just  can i ask what what happened before judge mal was there a hearing or proceeding or was it just the application just the application and the order your honor and to i want to answer the question that counsel posed hypothetically why didn't we subpoena local counsel for her it's magical honestly because we weren't sure local council had access and actual physical possession of the documents under the statutory requirements y who is an actual possession of the documents that's why there was a subpoena directed to greenberg traurig and time in question and as i said before it was always intended that this matter would be before judge roof i want to dress that your honor i completely disagree it's exactly like judge rangel pointed out you have to be able to identify specific documents so for example the january fifth two thousand and ten contract between acme corp and beta i don't know and i don't believe so the bottom line is there is no way for us to get the type of discovery we need through the german rules and only have to do is look at her races prior discovery application seventy two applications to see that fact they are lead to the palace come home and undermines the position the german proceeding so a subpoena request could have been directed to all testing to buy and it was not the reason it was more encompassing focusing on discovery is because of the massive overlap between the allegations in the which that was submitted in response support of our discovery application in cedar point what we're engaging now is a debate the courts a caution where there are hypothetical forays into foreign proceedings and  north of phoenix is a party to or was involved in the negotiation of the protective order in the ask him case that was negotiated between harass medical and asked him and answered by the court to the extent that there was