to do that because the issues are legal issues if on the other hand there is some urgent need to get to matters that were raised within the grand jury grand jury testimony whatever then of course that changes the dynamic and i hope counsel all of whom are very experienced will have sufficient presence of mind at that time to stop and make a suggestion at that point that we have to deal with this in which case we will so just watch the clock and thank you your honor for clarifying in terms of i do want to say on the record that of course i can't speak to anything covered by rule six in this proceeding and i actually would like to see the court's guidance as to whether the the record in terms of the search warrants is unsealed for purposes of this hearing or whether i should also in respect of the sealing order below not be talking about facts specific facts about the war well the only thing we've done is to deny the motion to the point either side if you get to the point where you feel that you need to talk about facts that are sealed then let us know and will reconsider whether or not we need to clear the courtroom absolutely we're not trying to hamstring your argument here we need your help on controlling precedent in ramsden which held that even even in a case where there was callous disregard of fourth amendment rights that did not justify return of all originals and copies to the move believe the third order is erroneous and as a matter of law because it's based on a fundamental missed apprehension of the relationship between search warrants and grand jury subpoenas and in particular that there were three aspects of the court's decision that were erroneous starting with the rule forty one issues we first believe that the courts should not have exercised equitable jurisdiction in this case and that is that we believe the four factors of the equable jurisdiction case to test that is set forth in ramstein and other ninth circuit cases did not weigh in favor of exercising jurisdiction here and in particular that there was not even a injury alleged here because the government returned copies of all the evidence shortly after the searches and because that's the only remedy that was even potentially available here we don't believe that the court should have exercised stiction as to the merits we do believe that manston is controlling it is a case where there was a warrantless search of a hotel room where there's obviously a significant privacy interest at stake and notwithstanding that fact the court of appeals held that although acquittal jurisdiction was proper in that case on the merits as a matter of law the district court erred by saying that all copies and originals had to be returned to the movements we believe that controls here under any interpretation of the facts even construing all inference was in favor of the movements we do not believe that any conduct here could have possibly been worse than a war search at issue in manston what specifically about the callous disregard finding that was made i'm sorry i'm not sure i understand what what's your what's your direct focus on the finding that there was a callous disregard in the subdirectory yes the the search warrant itself actually authorized the government to do something far greater than that which was to seize all computer because the warrant already already authorized it already had a specific protocol as to the computer searches and that sharply distinguishes this case from to morrow which all of the district courts below misconstrued here in to morrow there was a wholesale seizure of large numbers of files but the warrant hadn't authorized that these are now all that morris says is that if you know in advance that there's going to be evidence that you can that you may not be able to search within the time constraints of the search that you can specify a protocol in the warrant to allow you to take those materials off site that is the neutral magistrate review that contemplated into more that's exactly what the government did here we got a warrant that said you can take the computer evidence off site and search it if if you do not have time to do it on site so we did fully comply with some more and that was a the di decisions are based on a misunderstanding of it would then you want to to a different magistrate judge for another war well your honor that april thirtieth warrant was actually not necessary of the only mistakes in that we were required although it's been characterized differently by the movements of the discourse we were required to seek these warrants and to litigate these issues in the just districts where we did with the possible exception of the april thirtieth warrant but in terms of evidence that's located in the central district we have to go to the central district to search that that evidence we can't we it was not possible to resolve all of this in one proceeding in particular it wasn't possible to resolve it all in front of judge white who only had jurisdiction over the subpoena and he stated that himself on the record and the movement conceded that below i think the problem  first of all we do believe there is one factual finding of the course below that is absolutely clearly erroneous and that is that that the government made any misrepresentations to the judges in terms any factual issue necessary to decide the motion were there any evidentiary hearings conducted by any of the courts with regard to what happened before the factual findings were  i don't believe so your honor there were hearings before magistrate judge johnson held hearings before ruling in the government's favor in denying the motion for return and we believe that  is fairly well reasoned but i don't believe even judge johnson held an evidentiary hearing so this hearing would have been simply to receive argument of counsel and to consider the papers that had been filed in connection with the various search warrant done more in this case i i i think the decisions below reflect a rather cursory analysis of the issues here in particular all three decisions failed to reach the merits in the last in decision very clear there's a separate equitable jurisdiction analysis and then there's the merits analysis and then very distinct and if you look closely at the three decisions on appeal here none of those courts reached that for the merits issue and in terms of whether there should have been appeal from the central district make sure i have my facts straight the judge issued an order and you did not but the government did not file a motion for reconsideration within the time allowed by the rules is that right well actually you know we did file you know no party received any notice of the decision until a month afterwards in the dark it was under seal there was no way for any part that if you go by the date that was on the court's order as opposed to when we received notice of it that that is accurate and when did you file with and after you received notice of it when did you file your motion for reconsideration  believe we received notice on november second and we filed ours on i believe on november eighteenth the problem i think that we have is we get it's this is a little bit unusual but we get a lot of  cases where they were everybody makes precisely the same argument that we didn't get notice and we filed as soon as we got notice and routinely we say you got to file within the thirty days order to preserve you have to be  the second if we reach out in this case to say the government was timely we've got a lot of other cases to deal with them which we are saying that the letter against our timely with their motive because you have to file  expressing a concern i do think that in this case that can be addressed by the fact that this is a unique situation that the docket itself was under seal there was there was no way for us to even found out by getting the docket or even an order had been issued of course not that any district court would do this but if a court can insulate its decision by simply not giving notice that wouldn't be a good result either presented a motion for reconsideration however we construe those i'm not hundred percent sure of the answer to that question on our my my understanding was that this is simply a tolling issue as to the amount of time and that certainly when you file a motion of reconsideration you're only allowed to raise certain issues that are much narrower than what you can raise on appeal so it doesn't it would seem to not to make little sense right but i think i think you have to be case well we still we challenge most of the fundamental premises of that decision in our motion for reconsideration so certainly we believe that all of those issues are in our briefs here again but and such a result would seem to be inconsistent with the fact that most for reconsideration have a different purpose than an appeal and some of the cases we said in our brief motion for reconsideration and maybe you may be trying to clarify the record for appeal you may be trying to deal with a specific issue before you go up on appeal but to limit an appeal based on what you raised in motion for reconsideration would seem to unduly tie the hands of litigants now that's that's courts here we do not have a situation where if the conduct was rose to such a level that it is outside of the realm of ramsden and i see that my time is running short so i will reserve the rest for you may do so counsel will add it if i use all the time or far enough thank you first on the issue of sealing the courtroom i do feel the need to argue the facts because the inquiry of reasonableness under the fourth amendment is a fact pacific totality of the circumstances inquiry and i do feel that in order adequately to present the case i do need to discuss some of the factual findings made by the district courts below based on what happened here in the execution of the search warrant but how are those matters before the grand jury those are matters that occurred outside of the grand jury room it's  in my view the case i i don't want to spend my time arguing the issue of sealing the courtroom i feel like well if you could address a standing issue i have a serious concern as to whether your client has any right to be here and i read the supreme court decision and rockets versus illinois as saying that rule forty one does not confer any broader standing then then constitutional jurisprudence under the fourth and fifth amendments and if you can explain to me how it is that the players association can assert individual constitutional rights of players whose blood and urine samples are at issue here i'm all ears the a civil case with civil equitable jurisdiction but mr mallock is the the the collective bargaining law and enforcement of rights under the national labor relations act clearly recognizes that the recognized bargaining agent has standing to assert the interests of its members viso the enforcement of the provisions of the collective bargaining agreement it seems to me that your argument has to be the by unit and if you've got a case that says that i'd like to see it but i think it's distinguishable from rockets versus illinois which addresses specifically constitutional rights and the fact that they cannot be deriv by third party however the expectation of privacy which is balanced in the will forty one calculus is based here on promises made in the collective bargaining agreement and arguing that a party can create a constitutional right of privacy under a collective bargaining agreement i mean the closest case you've gotten a constitutional right as cats where the guy entered the phone booth and closes the door but in that case the supreme court recognizes that by the act of closing the door mr katz was trying to protect his right to a private communication which the government eavesdropping here your argument is that the collective bargaining agreement somehow creates a constitutional right of privacy in the results of these test reports which can then be asserted in a rule forty one motion and i'm having a hard time making that leap i'm not arguing your honor that that the collective bargaining agreement creates the constitutional right of privacy the constitutional right of privacy belongs to the members of the union i'm saying that in this proceeding under rule twenty four a that the union can assert the rights of its members because  privacy rights arose out of the collective bargaining agreement as to which the union is the proper representative of its members right it seems to me you're arguing association of little right as opposed to third party right in other words the collective bargaining agreement allows you to assert the constitutional rights of the members covered by the c d s a just as in the end of alessi peak case it was held that  baseball and the major league baseball players association own the samples and the data finally they jointly owned them under the agreement subject to the conditions of the agreement rest and they were supposed to be they were supposed to be used simply for  so i'm not sure that the government's concession doesn't necessarily mean anything well the argument i've made the argument is ok so i understand your argument if you and i don't want to take up all your time and stay in the there's really two issues here which is the issue of equitable jurisdiction under ramsden which every court below found equitable jurisdiction including the magistrate judge that the government seeks to rely on  all of the courts also found that the search was that the three district judges that ruled all found that the searches were unreasonable and they found it based on significant facts in addition to the argument presented by the government to to the material that's being searched for is not right that's absolutely correct your honor but in this case the search of a third party where there were no reasons to believe there was a possibility of destruction violated the government's own manual and when investigation no your honor we're not i'm going what i'm trying to do is go through in disha here that this search was because it was plainly overwhelming they had a very specific warrant for can they seize the drug testing results for thousands of people and it's important that while stuck there for a second you can see that the warrant was proper with respect to the ten correct all right well the issue i suppose arises and in the course of looking for that material it appears that it was mixed in with a larger group and that's is not the issue we have to deal with it is but and it's important to directly address that issue to understand that the facts of how that happened they when they arrived there they they found a document which listed names and numbers because quest only had samples based on numbers they took that and quite quickly started faxing out this list with hundreds of names out of  then when they got around to them they found a document which had testing but for only twenty six there were only twenty six positive tests listed on that document none of those positive tests were for the ten individuals and that information i never citing comes from e r to ninety four to two ninety seven which is the case agents affidavit were there identifying numbers on that list showing negative test results for any of the original ten who were the subject of here there were the names of some of the original mass and negative test results so why couldn't the government have seized those documents under the authority of the first search  law is pretty clear that where where the information is intermingled and you can reasonably extract it you can see is the volume the computer hard drive whatever it is that the relevant information contained in right with with respect to that document the pulse of the highly private information that was listed on it and the fact that there were it was a spreadsheet with names it wasn't like a bunch of bank transactions for one account it was highly confidential testing results for lots of different individuals and during the search a request was made follow the tumor procedures take it to a magistrate judge or special master so you will get the information for the ten but let's take it to a court of a special master to decide before you see these information for test results on an intermingle document for lots of people for whom you have no probable cause and it would have been reasonable to do that and it would have been consistent with him or do you do you really temerity as requiring the agents to do that when ever evidence is intermingled even when the initial search warrant authorizes them to follow the procedure th followed which was to seize the entire i'll call it realm of information and then take it back because it was just too voluminous to search on scene your honor i don't read to morocco to require that our argument is that in this case under the totality of the circumstances and given the type of material that was involved and the end of what was going on at the time it was on reasonable of the government under the totality of the circumstances not to have done that particularly when we turn to the other place that they found the vast majority of information a positive test results which was on the computer which they took with them that counsel for the government says well we had the right to seize all the computer equipment but the warrant which they die specifically said that a computer trained individual not the case agent but a computer technician was supposed to in the first instance look through that material and then decide whether the information which had been specified for seizure relating to the ten people was on it but what what we what required computer i t expertise in order to look at a file folder and see whether or not it contained names or identifying number of the subjects of the investigation of the warrant required that that was the procedure and it made sense because the least intrusive way if you're looking at a computer spreadsheet for example the government goes into a hospital it's got a data faced with drug tests for hundreds and hundreds of people they've got probable cause for one a computer trained personnel can find that information that they're authorized to get and give it to them without invading the privacy of the testing of the why couldn't the agent simply look at the content of the directory and see that the names are identifying numbers and make a determination why do you have to have an m b a and computer programming order to make it in this case because that's what the warrant said and i having not drafted i can't tell you why it was drafted that way but i think because it would be the least intrusive to get a computer person you could identify the least intrusive way of getting the here's what they did but but it sounds like given the intermingling of the information they still would have had been required to take the computers off science mean we're talking about data that would have to be extracted and it would retake hours to do that you know the computers  more specifically as to what happened because what happened is and this is the record site that i that i just alluded to two hundred forty two ninety seven the case the agent looked and he went back to and then they brought a copy up to san jose and they went before different magistrate judge all together and they said having looked through the information here is the case agent that's in this computer system i see one hundred four other names with positive records what do you do mr peters what do we do with the fact that that the copy is now in san jose and the to be searched is located in the northern district of california even though the original is in the central district of california doesn't the federal rules of criminal procedure require them to present to a judicial officer in the northern district of california their subsequent search warrant application for another search warrant to search that particular piece of property the hard drive was in los angeles i know that maybe that's not what they wanted to search they wanted to search the copy that was in san honor what they told them of you know you're not answering my question if the property is located in the northern district of california doesn't the rule require that the application be made to a judicial officer here property was located in both district go back and ask for a search warrant to search the original one they have a copy with identical data and that property is located in this district well there's not a case which requires that but here what they did was they made a copy they brought it up here and then when questioned as to why they had a soft the warrant here they said we had to because we had transported the hard drive off in the northern district and that wasn't true but and i think that that was what was one of many factors which order from the district court which is not going to appeal deciding that the search of the tracy directory this computer hard drives was unlawful it was never appealed what they did with that computer material was that they generated something called the be one less which is a list of players who tested positive generated mostly from that computer information which they seized on april thirtieth in heaven to people's they then use that list to go ahead and execute the on sunday sex and get urine samples the end of paper drug testing results for all of the people whose names they found on the tracey directory so the april thirtieth warrant which they have an  to rather than being a necessary it becomes critically important in understanding the lawfulness of all of the subsequent searches and seizures and that's and by not appealing it we believe that that's just a final judgment in that there's nothing that can be done at this point about me let me ask you this one of the things that's curious to me is the fact that the district judge has ordered the government to return not only the original property but all copies thereby depriving the grand jury of access even the property that you allege was unlawfully taken and the courts have to have sole ruled i am aware of only one area of law that permits the exclusion of otherwise relevant evidence from consideration by the grand jury and that's one of the electronic surveillance statutes where eavesdropping is shown to be illegal and the statute provides that no you shall be made of the evidence and i think in ram's than we recognized that even though the marshal search of the hotel room may have been unlawful that it was improper for the district court to deny the government access to the evidence  can you address the relief that was afforded here and why we shouldn't overturn it on the basis of rahm's them on the basis of ramsden because ramsden involved issues of foreign policy it wasn't our government that wanted it was the british government that wanted it and the court said that ramsdens interests could be protected in the documents by giving him copies and that the british government's interest could be addressed by by returning so you would you would narrow the holding in ram's them to its facts rules i would apply the advisory committee notable forty one and i'm quoting which says in some circumstances however equitable considerations might justify an order requiring the government to return or destroy all copies of records that so we're asked we're saying to this court this is that case because we're not dealing with the kind of records we dealing with an advanced and we're dealing with drug testing results for thousands of people  probable cause was ever attempted to be demonstrated let alone presented or not just rachel already for us to do this is the advisory committee no to a rule of criminal procedure or are generalized equity  about evidence that you're telling us the grand jury cannot consider if under the the advisory committee note and our general equitable authority maybe i wasn't answering the court's question because i'm now perceiving kind of two problems of it one is under rule forty one is a court permitted to order the return of everything my answer to that is based on the advisory committee no i don't read ramsden to limit that authority under rule forty one to return it to return everything i now understand the court also to be s to make whole the aggrieved party that's how i read the import of the district court's order am i missing something i think you or your honor i think that what the what the district courts were worse were saying in this case was that they were outraged by the government's conduct they found the implications of it staggering they felt that the government in gauged in the game of hide the pea they thought that they had thrown the fourth amendment out the window and under those circumstances having found jurisdictionally having found the factors having then found that the searches were reasonable which is the next step of the rule forty one and then i'll assess and then they weighed the reasons why the government claimed it was entitled to this against the privacy interests because the government has absolutely if the government's right in this case they could walk into a hospital they could take positive drug testing records or any employee employer based drug testing program they get probable cause for one they take every single test result and then they're completely immune from having to give it back they can use it and they can store open criminal investigations on every single person who's tested positive for drugs in some kind of drug testing program whether it's medically based or whether it's whether it's going on in the employment contract thank you counsel let you go three minutes overtime i presuppose i question it back very much thank you thank you thank you will hear from the government that i one question does the government purport to have the right to keep the sample information not only from baseball players but also soccer players hockey players whatever else well your honor we have we have not claimed that on appeal and so we have not put that it is you and i asked you we're not asking for that relief if you're asking what could we have kept that material is that what believe it was then and yes we were authorized specifically by the warrant to search every single file in all of their computers we took only one directory we were authorized to search every one of those files and if we then found plainview evidence was but again we have not taken our position this far and in this case there's no need to decide that we have are the only item we are asking for in this appeal are the lists which are intermingled  think i would like a response to the closer marks of your cancer because basically the implications of your view of plain view means that any time you go into any sort of hospital or any sort of drug testing and there are plenty of drug testing last i think i states the government position is gosh if we can get one test result then we can look at everything else and if it's some plain view we're going to take that investigated wherever it leads is that the government's position well i'm glad you asked the question because every medical state say we're investigating a doctor who's committed medicare fraud in every case like that in this country we have to go in and seized medical records of patients there are seeking is these materials for investigative purposes and again there are many protections that protect this material in other contexts and of course you're going to trial you know fourth amendment rights and all sure but the whole point is that you are the government is suggesting that under the so called plainview doctrine that if you have a bunch of data sitting in front of you and there's no right to react at that you can get confidential information which is clearly subject to protection otherwise for this question just from littleton standpoint everybody agrees there's no problem with respect to the ten individuals both sides agree that your position is that you are allowed at least to get the one hundred more or less that are allegedly baseball players that's right all right but it's more than one hundred it could be as many as it is thousands  i'm not quite sure it's exactly clear how many we're talking about here but there's got to be some sort of measurement or some rule that can be applied that will cabin this search and  by these health care regulations there are all sorts of constraints this is a very limited purpose that we're asking for this evidence for what you're saying not constrained by probable cause we really are can only see what you're saying is if you can use probable cause to get one one one test result then my gosh there's plainview and i are all these other test results just sitting there waiting to be investigated and we have a right to pursue that investigation well i think the difference is you've never you've never appealed this before because i don't think governments are taking the position before you sure you're constrained by health care but i take it at least and what we see redactions all the time people produce redacted medical records redacted testing to preserve privacy and the government says we want an redacted information that's commingled and we can use that for whatever purposes we want to even though we don't have any reasonable suspicion probable cause or or in any suspicion at all again so there are many protections on individually identifiable medical information terms of how we can use this information later they just don't apply here when all we're seeking to do is an investigation castle we've given you extra