magoo morning good morning thank you and may it please the court matthew mckillop for elliott capital advisors the district court's decision to defer to proceedings in france should be reversed for two independent reasons first the orders keep premise that elliott has identical discovery requests pending in france is based on an erroneous view of french procedure and second even if only it did have identical requests pending in france and it does not but even if it did the district court's decision to defer those requests until a french court rules is incompatible with the twin of section seven hundred eighty two that circumscribe the district court's discretion indefinite presumably something will happen in france according to which is a what this is different in connection i think that the stay here is a bastard over a year a there is no fixed point for its germination that it is for it to be lifted for any reason the district court's order doesn't provide for that what it says is that the that the discovery is stayed until the french court rules on elliot's request for an expert which we are we've all practiced law here i mean you can get an order and then the issues stay and it seems to me it's up to counsel if you want to stay order in that case was quote technically amendable but that did not alter the fact that in that case the district court had expressed its view that the that the key issues present in the federal court case there were to be decided in the state form and it was that act of really abstention that is reviewable and that is what has occurred here it is essentially an act of international abstention the district court said at page nine of the special appendix that the french court is better suited in the first instance to evaluate whether elliot's request for discovery is appropriate that is you know that is an act of extension and that is submit is really invert the appropriate order of proceedings rather than provide efficient assistance to elliot so that it may prosecute its claims in france the district court required elliott to make progress in those claims in france in order to justify the ability of discovery here in the united states that is exactly contrary to this court's ruling in metal gesellschaft and metal the cell shaft the district judge has express wish to have the proceedings considered first in germany at a hearing that on the facts of metal was only eight days away and this court took an emergency appeal and reversed that as an abuse of discretion and it said in that case that it was of course understandable that the court might the district court might want the foreign courts views especially when they were so close in time i'm but because but that would frustrate the aims of section not as if on a wholesale basis these were court sent said you know we're going to abstain here they granted some of the discovery requests and stayed some of them and  your objections to the ones that were state because the statute your construction of the statute is that it's intended to help the parties to get the information needed for the f litigant to obtain the the pain the approval essentially of the foreign form take it that forms for informed view that the discovery is appropriate is incompatible with that tw special panix nine the district court in overruling our objection took it as a way of ensuring that her discovery was not duplicative and this court rejected precisely that reasoning in the euro meet the case at about seven thousand documents produced here when i'm having trouble understanding about your argument isn't a man to say that would always be inappropriate because it would insert some amount of delay in the district court's determination as to whether and the court of appeals said that was an abuse of discretion to deny discovery in the face of a hearing that was just eight days away but i think it's clear here that the court did not really grant the stay with the views of the with the twenty aims of the statute in money the district court wanted the french courts views not because it was efficient too it would officially assist elliot's litigation or because it would encourage france to provide similar discovery in other proceedings it did it did so because it was he did not want to have to take a what it saw as a position on foreign oil and that this court has repeatedly said you should not take a position on foreign oil instead what you should do is great the discovery and let the foreign courts sort out for itself and here go over cost of your seven hundred eighty two is automatically granted in your view no that's not true either judge  district court here i think what you should tell the district court here is that it was an impermissible it was not permissible to stay the litigation for an indefinite period of time pending a for more than a year what's what's the status of the french proceedings at this point have the the proceedings that the district court stage its consideration of the issues in deference to him in contemplation have already been decided no they have not and why not indicated that there is a hearing scheduled for september fifth that it did and there's another hearing scheduled for the twenty eighth of november and but those hearings are to address what amount decision but we know and we obtain the discovery we seek that we would in fact bring that to the french court as part of our evidence to further substantiate our claim for an expert i do have to make this point that there is no basis at all for the district court's view that we have identical to scuff pending in france to say two things about this first this court in europe recognise that discovery in france is done on a document by document basis in judge jacobs dissent at page eleven zero four recognizes that there is no categorical discovery in france x p o zone expert recognizes this it ph twenty five and twenty six of the joint appendix  to order the production of documents sought through the seven hundred eighty two application further quoting additional constraints applied to documents were ok did abroad which would make it impossible for a french court to order the production of any documents held in the united anything other than that i think if you also look at the joint appendix at pages four eighty three to four eighty seven four eighty five excuse me you will see a translation of elliot's legal pleading that requests the expert and what elliott is required the request for an expert is the request for the appointment of what amounts to a special master to investigate the entirety of the relationship between andy and x p o that expert can request documents again on a document by document basis but that doesn't somehow transform a request for an expert in to a request for discovery and the district court's our position that it's to novo review and we think that's established by the second year omi a case in footnote two but even again if we had the exact same discovery pending and we don't but even if we did we think here the twin aims of the statute dictate that that discovery be granted rather then that the french court's views be solicited we're more than likely to send it back if we agree with you send it back to the district court and have the district court enter whatever is appropriate in that court's determination right that's what needs to be done here i understand you're not asking us to do that you want us to enter the discovery or  i think i am i'm sorry i misunderstood your question the way we get to the relief that you were requesting i would suggest mattel me if i'm misunderstanding this is reminded to the district court and have her lift the stay and then c contemplating what to do with the seven hundred eighty two requests are our position that the more appropriate response would be what the court did in your own which was to remand for the entry of an appropriate discovery order but appropriate as being what's appropriate in view of the district court in the first instance i think as they just apologize i do i i don't want to leave this on stated i think the district court should be as was as happened in not a final order under section twelve ninety one it's just not the it that's manifest from the face of the order because in the order the district court says among other things in judge net byrne's original order the january eighth order that a distant decision of the french court will assist this court in evaluating further evaluating the discovery request so the district court did not consider itself to be done with the issue the district court did not consider those proceedings to be at an end in every other sections seventeen eighty two a here there has not been a decision denying the discovery the decision of the and the there was a decision by judge schofield on september fourteenth twenty fifteen in which judge schofield said after a lengthy oral argument i'm not persuaded elliott has already had substantial discovery which it was awarded but i'm not persuaded that the additional categories of discovery that elliot wants are relevant to the claims and defenses that have been asserted in the french proceedings eliot and and the court ruled the discovery you seek is not relevant i'm not persuaded it's relevant eliot then moved to lift that four bit to renew its motion to compel that discovery so it was at that point that that judge schofield referred the matter to judge not burn for further consideration but it's and  schofield she didn't see the relevance let's hear from the french court maybe what the french court has to say will shed more light on this that's all she did did not defer decision to the french court did not see to her jurisdiction to the french court did not say to elliott you must exhaust all avenues for obtaining discovery in the french court and did not say i want to know whether this material is discoverable in france what she said was you haven't persuaded me i want to hear what the french court has to say because of that will bear on this court's ultimate determination of the relevance and appropriateness of this discovery elliott head four different opportunities to argue for the relevance of this discovery in an august for telephone conference before judge schofield in an august sixth telephone conference before judge school field these were lengthy telephone conferences they're what they were transcribed they go on for pages judge go field in the august six conference telephone conference said i don't want to keep this case but i'm going to keep this case because much of what is to follow in this application stems from the rulings that i have made she also said she then conducted oral argument in court oral argument after two telephone conferences where these same issues were addressed and where elliott had the opportunity to argue for the relevance of this material so ultimately what judge schofield ruled was i don't see the relevance at this material it seems to me at least without prejudiced the mother put to some other point it doesn't make sense to me at this point to require them meaning x p o to produce the categories that have been outlined she said i'm going to rule and what i'm going to say is that you're not entitled to the information eliot without prejudice to renewing it at a later point when you can explain it to me that's a joint appendix three twenty six elliott chose to renew its application that's what it did in october on october twenty seven that's what went to judge annette byrne and that's when judge annette byrne said i've heard you judge schofield a surge you we aren't persuaded let's hear from the french court the french court will assist what the french court has to say will assist this court in evaluating the decision so coming to the question of appeal ability and jurisdiction what judge annette burns said in her january eight twenty sixteen order which she repeated in her march order march two thousand and fifteen order twenty sixteen order denying the motion for reconsideration was this ultimately decide this issue but first we want to hear from the french court in that posture we don't have a final decision for this court to review even if we had a final decision for this determination no there has the the that is correct that the original order of judge net burn the january twenty sixth in order expressly requires that said  a shared appendix special appendix six the parties are to provide the court with a status report every month we've been doing that the judge not burn also directed the parties to promptly make available to this court a certified english translation of the french court's decision on elliot's application the french so it's not really an indefinite state it's a stay pending a decision by the french court this is not the sort of stay where it's functionally equivalent quibbling to a dismissal because the district court doesn't intend to do anything else in the case this is a stay with a  particular specific end date in mind which is something happening in the french courts proceedings so coming to brief the french court refuses to address this or is  guess the other part of the second question its companion is the french court going to make some decision that is going to be informative and then about or don't you know that's possible i can't you know i can't say that that what the we judges cahoots well about what the district court what what what the judges net burn and schofield believe is that at this point having heard everything elliott has to say on the subject to pull oral arguments with written submissions or french counsel maybe what the french court has to say will shed some light as judged arraf is pointed out there is no right denial of discovery here and as this court has has stated and several of the decision cited by my friend mr mcgill this court prefers the district courts give at least partial relief under section seven hundred eighty two tailor relief rather than an outright denial that's what the district court did here maybe what the french court says will help maybe it won't but but the district court is looking for help because it's h everything eliot has to say and i guess i have to emphasize the district court gave elliott a ruling in the language i just read to the court on september in september of twenty fifteen that said you haven't persuaded me i don't find this relevant to the claims and defenses the way you've explained thing i am denying your request for this material i would just ask you you know this is a term in international law having to do with harmonisation of who was among countries so that they help each other and i think one of the arguments being made by the appellant is that to delay is to deny in effect and doing it the french quarter takes whatever it comes up with the end result from the state will be in effect the denial of this information which might be helpful to the french court how do you respond to that well let me say first and foremost about that is that both parties here have been ordered to make extensive document productions the party sub in order to give depositions in the end they agreed they wouldn't but that was an agreement of the parties the court ordered so the court ordered extensive document productions here the documents that each so it has obtained have been used in the french proceedings but the district  discretion applying rule twenty six applying the intel factors to say i'm giving you what i think is reasonable and appropriate and fair some of what you're asking me to give you you know without saying it i find it to be harassing and overbroad and not learnt so and the other point i want to make is that goes to the argument that a stay is effectively a denial that goes to the question in my mind at least of finalmente so if if this court were to construe the stay is a denial then then this court would find or could find that there is finale t for the purpose of reviewing section of reviewing the rozzers diction right but the the denial would not be an abuse of the district court's discretion because the district court granted discovery the district court in fact as is reflected in the hearing transcripts in the joint appendix supervised discovery in considerable detail actually took argument on elec tronics search terms took extensive argument on what custodians files would be reviewed by x p o set specific dates for rolling production by x so the district court there's no outright denial here what there is is a decision by the district court in the exercise of its discretion taking all of this into account yes on much of it no on some of it so even if it were a denial i would suggest that under the cases the district court was well within its the sound exercise of its discretion in reaching the conclusion that it reached on the specific items o discovery that are now in question the no is effectively a no because is it that consideration further consideration of that was i don't find this relevant without prejudice to your right to try to come back to me and persuade me maybe at that point elliott could have appealed it chose not to do so it chose to go back to the district court it was at that point after saying i don't find this relevant that the district court said i still don't find this relevant you're telling me it's needed in the french city i want to hear from the french court because you haven't persuaded me of the thank you your honor on the jurisdictional point my friend mr schuster is acknowledged what the district court's order is a stay pending the decision of the foreign form that is an act of international abstention and like any international extension case that is stayed pending the decision of the foreign form it will come back to the eventually to the federal court well if you would you disagree with the characterization that effectively the answer from the district court is no you don't get this discovery but i as an alternative which seems to me to be maybe splitting the baby appropriately or maybe not but trying to be helpful but will stay up because the french court may tell us something that then persuades me that it is relevant i don't think that is a completely accurate characterization of what the district court did here the district court stayed the discovery because it didn't want to make the relevance determination i thought what did your adversary miss characterize the the time line there answer was no but you guys can apply again and then you you or did you not argue the relevance of what is still an issue yes we absolutely did and and there were this would be this case became exactly the battle by affidavit of experts that your own me put to cross because we said we submitted expert testimony that says this is complete this is transparently relevant to our claims in france and their experts said it's absolutely not relevant and your own meet us says you should just record should not attempt to make that determination but the district court's answer here was to say french court you make that determination and that is inconsistent with the twin of the statute it is rather what your own me pursued jests is what the district court should do in that type of situation if is it should grant the discovery and the and then the foreign forum can determine for itself what is it what is appropriate to submit amounts to that admissibility requirement that we demonstrate in advance that the discovery is going to be somehow lead to an admissible or lead to  but that would assume what the district court has done here is say the french court what what the french court says goes and that would assume that the saying that the french court has the same view of relevance that guides our discovery that we do and of course it does not the french court has an entirely different system of fact of element that is section seven hundred eighty two is intended to supplement and that is why this court has said for well over twenty years that every act of discretion must be guided by these twin aims of providing the efficient assistance and encouraging foreign forums to do likewise what the this record did was say i'm not convinced that this this discovery writ part of the discovery request meets the standard of the statute and it would be helpful to have some information french court or if you're not happy with that you can still come back to us and retain jurisdiction is that an abuse of discretion on the part of this group judge i think just so i'm clear on this point it's there's no dispute that the statutory requirements are satisfied that the question is whether the district court here appropriately exercised its discretion and this court has always said that the discretion must be guided by these twin aims and it is our position that a indefinite stay for a decision of a foreign forum as to whether the discovery is appropriate is not compatible with the aim of providing efficient assistance it is in effect the same foreign exhaustion requirement that period of time and that's not what went on here this was a this is a discovery pending the foreign court's decision and i think if that is if that were permitted then judge chris a decision a medal to sell shaft should have been affirmed because that was what all he did was say i want to see what the german court's going to do eight days from now then the decision and malev also should have been affirmed instead of reversed because the court wanted to see what the hungary in court was going to do so i don't think it is ever permissible for a court to say i'm going to stay seven hundred eighty two discovery proceeding pending the outcome of reduce the issue relevance is a non issue no the relevance is it is an issue but the relevance of the four categories here that are at issue was considered and there is no i don't think the district court's order fairly can be read as saying that the categories that we're seeking are not relevant what the district court has done they get that answer if we ship it back but that's but that's exactly what the that is not that is inconsistent with the twenty if that district if a district court can say i am not going to grant discovery i'm going to make the foreign court first tell me whether the discovery is relevant which is what is the current characterization district court you decide this issue yes you're going to make me think answers and say all right it's not right they don't i think and then it comes up to us again not this panel sure you  and and then it will be up to that panel the panel of this court to determine whether the district court abuses question i will i will take that chance because i think th discovery of the four categories that we're seeking are transparently relevant to our claim that x is stripping value out of the nor bear company but your your to the extent you're asking a question about finale to the the issue there is no doubt that there is a pending the decision of the foreign for that and the decision to stay the case pending the foreign forms question what is the function of this month we report the parties who are involved it has nothing to do with what's going on in the and in france what's left that  i don't know what the function of the monthly report is the order of the district court is quite clear that this discovery is stayed until there is a decision on our request for an expert and that is why the district court special appendix six requests a certified copy of a translation of that word or the monthly status reports are typically less than a page and they describe what has transpired in the french with a geisha in what hearing has been set and i think three out of the six of them that have been filed say nothing is happened since the last report they they are not a substantive requirement i don't think it changes in any way the abstention analysis here in fact i