good morning and may it please the court i'm rob stone for the appellants the petitioner's below investors who lost money during the short squeeze in two thousand and eight a v w stock and who have lawsuits pending in germany this foreign proceeding who were seeking as assistant in the form of taking discovery in the united states for use in connection with the foreign proceeding the district court then proceeded to conduct what is referred to as the discretionary analysis or the review of the four discretionary factors set forth in intel and in no complaints out and about those intel factors they're not exclusive are they  there in other words when you say the district court proceeded to consider the exercise of discretion and using the four intel factors is it not the case that before intel factors are exemplary rather than exclusive factors i think that that's a fair statement though the way the cases have played out with great consistency is that courts tend to use those four factors and the vast majority of considerations that might seem to be i was thinking well maybe but isn't that an intelligent thing for a district court to consider whether it fits that within that little cubbyhole or if it's the language of that intel actor or not like like intel factor number one for example or the documents it is the applicant or the subject a party to the foreign litigation and he said only intel factors know you know that these people are not parties but the judge looked at it closer and said well yeah that's literally true the way that is a hotly disputed fact there's really no evidence that porsche has merrill lynch's documents and there is no evidence that the state prosecutor in some state in germany has the documents that are being requested by the petitioners but nevertheless the court is entitle to consider that but that's not really something that should have weighed against us here and that i think gets to the ultimate question that your honor was asking is that judge code put these these points into the same discretionary factor analysis that the supreme court set forth and in doing so you're she was being able to look beyond but then made a series of errors in doing so and in errors if you're going to win this it seems to me what you have to persuade us is not that in some technical way this business of where the documents available from somebody in germany a proper part of intel factor number one what you've got to persuade us is either as you said it was error as a factual matter to conclude that this was so or even if it is that whether it's intel factor number one are an independent factor is not a factor that should be considered to weigh at least as heavily as the ultimately the issue is is that an abuse of district courts discretion to say no that given everything that's before me this is not a good idea to do you know i hate for this conversation to get hung up on the st factor because we don't really remember the rest it's example i'm not hung up on the st either but it seems to me that virtually everything you argue is in the framework of well this factor should count for us and the things that the district court stuck under that factor don't really go there and don't really flip that factor the other way when what i'm looking at is taking all of the facts that the district court facts or alleged facts or non facts that the district court considered was this an abuse of discretion in the aggregate but i think in the aggregate when you look at all of the factors it does become an abuse of discretion  respect to the st factor there really was no factual basis for that finding and then when you turn to the nd factor i think we have the same kind of problem and in fact the judge's analysis sort of flipped to the question over and you took some consultations which preceded a trial that is still ongoing with with hearing dates this month next month and into september that the court decided that because of some preliminary remarks as to which there was serious factual dispute she engaged in these speculative foray of trying to debunk had was a trial of just be quiet about these disputed facts just the opposite we should we should have neutralized and not gotten involved in trying to weigh competing expert views about the significance of what are just preliminary consultations our expert testimony is it not the case is it not undisputedly the case that the german court negative view of the plaintiff's case and as a consequence of that declined to request certain documents which are at least a part of or related to the discovery that's being sought here not really there is a dispute about that there is there is no dispute that there were what we could call negative remarks but that really has some is a totally separate question from the declining to request document negative remarks were in the context of a request that documentary i wouldn't call discovery at all i don't think from everything i know about current procedure that that's what it is but there was a request that the court get certain documents in the courts and i think that's really helpful but we don't know walk and we certainly don't know that it's because of the court's preliminary consultations came to the conclude isn't that they were taking a negative view what we do take a positive view but it is at the end of the day the plaintiffs were having a trial and this court ordered the district court could have assisted in the provision of of discovery in aid of that trial that trial is a is a huge trial with huge stake that it that was requested was essentially of documents that did not emanate from the united states whether they could have been obtained in the united states the united states was not by anybody's expectation the primary locus of those documents is that not right i don't think that is necessarily the case i don't have i don't have in the record evidence that supports that assertion you give any evidence that it is likely that documents related to this transaction would have been prepared in the normal course of business or retained in the normal course of business by the united states merrill lynch entity there merrill lynch is the investment banker have fact on this transaction was in ireland or it was when it was organized in under an irish entity but really i think they're talking about london but there is no assertion that new york was not  involved they don't make that assertion at all if you have any evidence other than mr thain's conversation as to which at least initially i think the that's not the issue here you were going to get a deposition is is  there any evidence that something happened in new york that you were able to prove that well we have the same meeting which leads to the general belief that new york was involved and in addition there there is a request for documents relating to the the lending of v w shares which was part of the transactional process associated with short selling and it is our assertion in our communications with merrill lynch's counsel which judge co asked us to engage in that the inventory force for securities was also centered in new york so there is discovery potentially relating to that data which is centered in new york because the inventory as i understand it and i don't have citations in the record but just generally is maintained in multiple locations because calipers might be the holder of all of our huge stake in v w shares and we are some connecticut hedge fund wants to short it and and through london even but there is inventory data in new york those are the sorts of pieces of information that we conveyed in our communication with merrills counsel during this  can morning your honour's suhana on on behalf of portia se judge you asked the question whether the intel factors are non exclusive and that is absolutely correct this court already she gets up she will certainly talk about instances where that scenario was presented and in the  but that that is a very relevant factor that judge below did take into account as part of a flexible framework that intel had the supreme court had set up i would like to address some specific points that my colleague here are made with respect to for you on tell me ask you this obviously it's not the intel factors are not exclusive there to be considered other things may be considered but what if you have a situation we are applying  literally three or four out of the four all point towards discovery literally mechanically can you still take into account other considerations that essentially render  them i think it's going to depend on the particular circumstances your honor and i imagine there may be a scenario where such weighing may result there but what happened here is even applying just the int the four intel factors laid out in the supreme court decision judge coat still held that on balance that those factors did weigh against granting section seven hundred and eighty two dollars discovery s going back to the st factor as your honor had noted judge cote did acknowledge the fact that the merrill lynch respondents were located in new york but that's not the entirety of what intel factor one says makes crystal clear that the real relevant question is whether there are sections happening eighty two aid is required and when the party to the foreign petitioners in the german litigation actually made the request to the higher regional court of of the same documents they asked for the prosecutor's files they also asked for a lot of documents with respect to the option strategy at issue as well as financing issues so my co my opponent here talked about how that the disputed issue but they themselves asked for discovery and and i'm not going to quibble with whether this is called discovery because nobody's saying that there is u s style discovery in germany but the record is clear that the german planes did ask for that discovery the fact that they asked for them is evidence that in fact those documents are there the fact that they believed that they could get them so what what mr stone the n i mean the i realize the judge didn't get to the issue of burden among the intel factors but the requests here are pretty dramatically sweeping and they concern documents that merrill lynch whatever merrill lynch has in its files that are in any way related to this may be comparable documents or copies of some of the documents would be  possession of the possession of somebody else but what they're asking for almost by definition involves the other side of these conversations or internal deliberations that merrill lynch or all kinds of things that fact there is contrary evidence on the record that the merrill lynch respondents who judge cote assumed were located in new york had no involvement in the in the claims and issues and the option strategy fifteen meeting with mr thain but no mention of any involvement of the u s entity in fact instead what what they did in the german litigation is that they referenced merrill lynch entities in frankfurt and london consistent with testimony that was provided in connection with the criminal proceedings so they rely on the very same witness who testified that the merrill lynch entity involved in the mergers and acquisitions advice were located in frankfurt or to the extent financing was involved london and i just i know my time is up but i just want to make one more point with respect to the document requests your honor yes there are a lot of sweeping discovery request but many of those requests also relate to communications involving porsche if you go through it very lengthy the communications with  x y and z so this goes back to the point that i was making earlier that i think judge correctly found and that under intel factor one the fact that porsche is a iligan to the actual german action would have enabled had the higher regional court so deemed it to go ahead and order that and mr stone said that there is dispute as to whether the higher original court made an adverse ruling we can quibble with what you want to call it but the record is clear that the german plaintiffs biled over seventy recusal motion of the various judges who made decisions if this was not an adverse ruling discretion for the district court to consider what the true targets of the documents were and where they resided and so st really reason i mean there's no such thing as that it's anymore is there is digital data and the real question is that results from what this gets to judge lo is question from before about the veil piercing slash corporate separateness issue and what the question was is who were the appropriate targets of this petition and we came in and said essentially your honor if you look at who provided services porsche it was an entity in ireland with a frankfurt branch it was an entity in the u k and it was an entity in the dutch antilles doesn't ad the question of whether somebody in ireland or the u k has a superior ability to hit a button and call up the data as opposed to somebody in new york right well so the two cases that address this corporate separateness issue squarely ocean one who thinks this but i happen to think that it is outrageous for court to say we decide something but we're perfectly free to decide the other way the next day on the exact same facts so there are at least some of us who pay attention to the decisions that we make that we think are so obvious that they don't need a presidential opinion and don't think that that means it's gone down the memory hole and we should ignore it so maybe the bar should be aware that not everybody  takes us quite so literally and that we don't take ourselves some literally either because you'll find many cases in which we wind up citing the things that we think are not presidential and as i used to say when i was a district court judge i know they don't want me to cite these things but gee i think the opinion of a distinguished panel of the nd circuit is actually worth a little more than a freely cite a bora view note by a nd year law student miss there is out and if i if i that was improper and the circuit affirmed isn't there a distinction that we should be making here if the question is are the mandatory factors met it seems to me it's quite appropriate to say well if we've got jurisdiction over an entity that can push the button that sort of good enough they can get these records asked that but when there's a question of discretion being exercised isn't the real question  is this a case where the united states is i would say obligated but it's in the interests of the united states to provide litigation support to litigation going on in another country when really even litigation support is perhaps best sought in still a rd country that if the united states because it's the headquarters of various globalized corporations is going to be in the business of being solicited for documents all the time extensive discovery using american procedures american courts when the real entities that were involved in these transactions are all f n i should think that's a factor the united states could consider you know if this court can consider its discretion in deciding whether this is really what seventy two is supposed to do that that's correct and let me be very clear there is not a single case that says that a district court cannot consider this in their discretion there is certainly a split with respect to whether it's mandatory but even the cases that petitioners cite to say that this was inappropriate many of them actually say these factors can be the location the true target can be considered in the discretion of the distr court and that gets i think to the twin aims which are reference repeatedly in the case law and to what you were saying  official cooperation in other words by piercing the corporate veil or by reaching across affiliates are you doing anything that's either consistent with pursuing efficiency or  fostering international cooperation and with respect to efficiency it's obviously quite overbroad you're encouraging or you're so seeking to require an entity in the us to go fetch documents from their affiliates wherever located and with respect to worldwide but there's a no evidence in the record that that is true but be the bigger issue is is there responsibility for a parent or an affiliate to go fetch documents from its affiliates wherever they reside and under seven eighty two dollars there is no such obligation even if you were looking under the federal rules they would have a burden of making a showing and they did not so in any event what i would respectfully direct your honour's to is the kestrel decision from the th circuit where they yet with this question in detail and in fact said among other things seven hundred and eighty two neither requires nor encourages district courts to essentially disavow corporate for maladies by is court finds and views of discretion and discovery and decisions made by the district courts in a domestic case and yet when we have these seventy two cases we seem to scrutinize the district where we have wind up firming whatever it is to quit because most of the time anyway but there's a lot more focused scrutiny on the decision and i'm wondering i mean is that because is that like right that we do that because one reason why we give so much leeway to the district court in domestic discovery disputes is that the district court is closer to the facts they know and they not know much better what's going on in the case than we do where you hear nobody knows what's going on in the case and it is it appropriate because this involves foreign relations and congress's decision that we should be helpful wherever possible to the foreign courts or should we be even more deferential to the district court because if we're not as if it was just this too we wind up with things like well there's a factual record that could be in dispute about lots of these things and we wind up with issues where you know it's not even our business in some sense and yet district might be asked to have factual hearings that they wouldn't even have in a domestic discovery dispute about all manner of things about where documents are really really reside and what the technology is and who has control and would be pierce the veil and all these kinds of difficult facts so you have to take on that is part of your position on is this a case where we should be at least as that goes right back to the statute the statute uses the permissive words over and over and over again the supreme court in intel says that these this court's decisions on seven hundred and eighty two often focus on the discretionary exercise that is involved in reviewing a petition and for good reason the court is considering not only what happened in a proceeding abroad which is perfectly appropriate and permissible under intel the court is also considering the scope of the application and what's there the court's also considering good faith which is effectively the rd intel factor and so for example here at the preliminary conference when we raise the issue that they have the wrong entities the district court directly asked petitioners counsel why they named these respondents and the answer was well these are the major merrill lynch entities and then trying to unpack that petitioners counsel said well we have no real reason other than they're big and we think that they'll be the custodian of lots of documents from lots of entities which is suffice it to say that the just record is entitled to consider the nature of the application itself the nature of the underlying litigation a broader the underlying proceeding abroad as the nd circuit has repeatedly suggested review of the cases that come up from the district courts should all so take note of the so called tween aims of the statute that we should be providing efficient assistance to lit inform proceedings and that we should be providing an example to foreign countries of the beauty of our system and those those elements are really not present in the lower court's decision here there was reference to them at the beginning of the judge's discussion of the decision but there really is no reference to why those are being are being served and in fact we think they were being hampered in this case that this is actually a pretty textbook case in which discovery should have have been allowed now there are more things to respond to than i have time but i just wanted to get to a few things st the references to the german plaintiffs having requested these s elements of discovery in germany there's no read a clear record on this at all what is clear and what both sides of the dispute from germany agree is that in germany they really don't have discovery if you want a particular document it rests entirely in the discretion of the judge which may be exercised for a wide variety of reasons and you have to specify the date the two and the front there's no categorical reaching for for documents that takes place in germany and so there's no record of what was requested in germany and it's certainly not a clear record now it's also suggested repeatedly by both counsel that merrill lynch had a new york had no involvement when we know that that's not completely true because we know there was a big powwow in the middle of the global financial crisis where the c f o of porsche was summoned to new york to meet with mr thing that alone tells me mr thain was briefed about this there were e mails and there was an agenda item and the connections between merrill lynch entities and porsche were so substantial that probably the whole umbrella had to be presented to mr thain in advance so they're they're big pow that would suggest to me there are documents in new york now we have a good faith belief that the new york entities that we want to serve subpoenas on have responsive documents we currently have absolutely no record that that's  untrue and on that basis alone i think it is inappropriate for the right book will describe your response on it but you characterize your response to the question why merrill lynch in new york and she said well those are the insanities and there's really nothing more by way of response was accurate no i don't think that is correct correct i think that those entities while they are sort of higher up in the hierarchy they're not just  just names those are in fact entities with people who are involved with porsha that's our belief we've heard nothing to the contrary and so we've never disputed that the investment bankers were primarily involved in new york but we don't that in london i apologize but we you know but there's no evidence that there was nobody from new york involved but we do know is that merrill's counsel here for the new york entity is was able to obtain readily copies of engagement letters with por that she was able to describe in a declaration but they refused to furnish to us so we don't even know there's a mystery even about the engagement letters but there's ready access that the merrill lynch new york entities have to allege engagement letters of foreign entities and yet there's no availability of these documents for us to be able to find out what's in those engagement letters that just take you back to something you said  ago when everyone of course agrees that there is nothing like our discovery in germany it strikes me that there is a certain tension in our case law about the relevance of that to this kind of decision  your adversaries cite the key a bell decision from this court and is possibly suggesting what might seem to me to be almost a something as broad as well that documents were sought from a law firm just like thinking about all the documents were sought from who received the documents is like privileged cases right and i think that there are a number of cases that can and can fit in to that category court there were orders in the foreign court that expressly addressed the availability of these documents and it was really a workaround to try to get party documents we don't have that going on in this