for the apple leaves and mr simons you may be can thank you on our good morning may it please the court by name is marcus simons arguing for the plaintiffs appellants here who are residents of columbia bringing claims for severe human rights abuses they're suing chiquita over its admitted illegal financing of paramilitary death squads which led to u s criminal conviction this appeal is about whether these plaintiffs will continue to have their identities as well as their addresses phone numbers e mail addresses and other private information protected from public disclosure colombia remains an extremely dangerous place because people raising claims of human rights abuse with over one hundred people murdered last year for their roles in trying to defend human rights i'd like to make two main points this morning st in removing these protections from the protective order the district court should have required defendants to show good cause for modification rather than requiring plaintiffs to show good cause to maintain an order that it already issued and nd regardless of the burden the district court also abused its discretion and ignoring the evidence and arguments submitted by the plaintiff before getting into these points however cases recognize that the disclosure of identity information implicates important rights it is conclusive once it has occurred and it is effectively unreviewable afterward stiegel in particular establishes that jurisdiction is present even when the appeal to eight that there are three that are represented by different counsel who opted not to appeal you're right but i'm just i'm just trying to figure out so there are eight before us now including wants to merge the issue with the summary judgment with the summary judgment appeal i suppose it could do so it's not it's it's tough it's collateral to it because  was conclusively determined to prior to the details no i agree that it's a lateral but i'm simply saying it's something that whatever peril hears the case on summary judgment could consider that but that wouldn't affect modify that protective order there's no dispute that when a protective order is issued on good cause good cause is required to modify it and there's no dispute that the district court here did not require defendants to show good cause for modification but instead place the burden on plaintiffs to show good cause to continue the protection did the did the district court require any showing a good course on the front end when it ends with a protective order i thought it was a stipulation order each side amid material from a court fashioned it protections and that decision recognized that litigating these claims in columbia would d be quote a very dangerous proposition partly because the plaintiffs quote would be required to file civil claims under their own names in columbia circuit's case was there is no ability to issue a protective order under rule twenty six dollars c without finding good cause and so i would agree the issue was minimally litigated but it was minimally litigated because it was obvious to all parties concerned that after the court for an on convenience decision which expressly denied dismissal based on the dangers plaint us litigating in columbia that it was obvious that protection for these plaintiffs matters because it's an abuse of discretion as a matter of law however if if we're getting into the merits of it that's simply not true the we submitted extensive evidence evidence of a character that this articles to determine that there was a risk to the plaintiffs of disclosing their identities and this case we submitted exactly the same kind of information to show that the risks in colombia p t part of what the district court suggested was that we had not offered a logical reason as to why bringing these claims against chiquita in the united states would put our clients at risk in colombia but that simply not true the district court simply ignore the the reasons and the evidence that had been submitted part of that logical reason was in fact recognized by the district court and its own former inconvenience decision the court previously could face retaliation from people in colombia who have not participated in the peace process and who could be criminally implicated by these plaintiffs testimony and we submitted evidence that that claimants in colombia who are claimants and human rights cases are at extreme risk and that there have been public death threats by by neo paramilitary groups successor as to the groups that one about the evidence of the plans to have proceeded under their own names and not anonymously i guess for ten years now and apparently there's no evidence that any of them have had any threats or violence against them that nobody produced evidence that they had been subjected to threat or or attack in fact one of of the plaintiffs at issue in the bell wether trials did submit evidence that she had been subjected to attack by by the very same death squad group that had issued the public threat that i referenced earlier but the real question here is not the hundreds of animists i don't have the details for of all of the plaintiffs here but i will say that different plaintiffs have may have made different decisions based on their own assessment and their own personal situation in terms of how exposed to threat they are but but my my real point here is that there's only five named plaintiffs that are proceeding as bellwether trial plaintiffs the vast majority of these plaintiffs proceeding under their were under threat if you read the full depositions and not just the snippets of confusing exchanges that chiquita submitted i think that's that's very clear but but out of the five plaintiffs that that are proceeding to trial one of them has faced attack and that's the number that matters here it's it's a small number of plaintiffs that are going to be high profile in the trial context actually giving evidence t implicate criminals in colombia that could lead to further investigations that could put people behind bars that could give the people and death squads and people more time with very strong reason to retaliate that judge bush was asking you the district court says among other things references the fact that the comparative experience is named and unnamed plaintiff given that hundreds of other a t f plaintiffs are prosecuted the names under their true names since their complaints were filed over ten years ago were without incident was the district court free to rely on that without abusing its discretion in that it did no your honor because for two reasons st because again the burden was on defendants to show a good cause for modification and just  know for three reasons st because we don't actually know the situation for the vast majority of those plaintiffs they were never deposed they were never asked about whether they're under threat whether they've faced any attacks or anything like that nd because they're not similarly situated these five plaintiffs under pseudonym are proceeding to trial where they are where they're going to give evidence of a very high profile trial that is closely watched in colombia those hundreds of other plaintiffs were not they are not under the same microscope and cert as as has mentioned earlier we don't know what kind of self selection took place and in terms of which plaintiff decided to proceed under their own names versus which plaintiffs decided that they could only proceed safely using pseudonyms and one more thing i would add your honor the legal standard cannot be that some of the plaintiffs in the case have to have actually been attacked in order to show that it's risky for others to disclose their identities that is not the standard that's ever been applied by this court you good morning your honor may please the court judge marcus i'd like to answer your question based on what's in the record actually in the record as as opposed to counsel's representation of the record what the record actually shows is that all the plaintiffs who are subject to this appeal were to post those deposition transcripts are at the appendix that problem the problem that i have as is is that the district court's order is pretty sparse and it doesn't give us very much to review it's less than a page the analysis is sparse it's a complex issue and there is evidence supporting anonymity and the court doesn't really explain what caused it to change  respectfully judge wilson i disagree if you'll let me continue with what's actually in the record and how the district court did in fact i think very intelligently dealt dealt with balancing this evidence and of course in balancing the evidence the court under an abuse of discretion standard is to be given great legal way and only if he made a clear error and balancing the evidence  may this court reverse and even if under the jurisprudence of the th circuit the court will affirm the district court's evidentiary balancing even if the panel would have gone the other way but there was ample evidence  for the court to decide the way didn't and and judge mark's point so in addition to the evidence i was just reciting the undisputed record shows as i think judge marcus was discussing with counsel that hundreds of plaintiffs in this case have been proceeding under their own names for more than a decade without harm to anyone without any evidence in the record that one of them not one of them have ever been threatened because their status as litigants in this case the undisputed record also shows that two paramilitary leaders who are alleged to be paramilitary leaders alleged to be the source of  stress they were deposed and specifically asked if they had any reason to hard places because they were suing chiquita for eighteen billion dollars in the united states they answered no there's no evidence in the record that st of all identifies any paramilitary figure at all who threatened or harmed any plaintiff in this case and there are seven thousand five and on pages three and four of its order the district court accurately summarizes all of the plaintiff's evidence as showing that colombia remains a violent country and culture he  said and he goes on to say i guess the problem that i have is the court as a complete about face without explaining why and on top of that the court's order doesn't very that unfair as to defend it was not required because there was no showing a farm much your honor there is substantial harm to the defendant here and that arises out of the fact that in judicial proceedings and basic fairness to the defendant that requires plaintiff accusers to proceed under their real names this is not some sort of empty platitude or window dressing so  the trier of fact but we would submit to you in the eyes of the public in this case dozens of legal complaints and dozens of news articles about the claims of jane and john doe versus chiquita and individual officers the issue of this general culture of violence in colombia and that human rights defenders in colombia and social leaders may be subject to increased violen page three and four of its order is that these generalized threats to human rights defenders do not prove that the plaintiffs themselves faced a personal and specific risk of harm by virtue of their status as litigants as the district court noted and this is a pure application of evidence wall to which the court this court the circuit court should get give great deference what the court this record said is that there is no logical connection no connected relevancy between the plainest hearsay evidence and the fact of consequence they had to prove specifically threats of real harm to them not threats generally because colombia is a violent country not threats to human rights defenders or social leaders but threats to them as litigants in this case and that's what they could not prove and that's what the district court ruled and he was well within his ear of choice and as this court said many times the district court is permitted a zone of choice and the district court could go different ways but the evidence we would submit to your honor is absolutely compelling that the evidence of harm to any specific plaintiff as a result of their status as a litigant here does not exist and in fact all the specific evidence including their own deposition goes the other way now i also heard in judge wilson in your question is that you were somehow concerned about we made a different decision five years ago in the f n c decision in that case there was a different issue the issue was is columbia a viable forum is an adequate forum to proceed not whether the united states has an adequate farm and in fact the court found that columbia was and allow them to proceed here in the united states two different issues there's no evidence and this is why judge mara decided the way he did on the student in question there's no evidence in this case that proceeding in the united states as that's a big deal to suddenly say we're going to try the case here what was the foundation that what was the basis for the district court ruling the basis of that ruling and it was was they more than that wasn't it more than that as a general and abstract matter colombia was a violent place didn't tie aciphex lee to this claim by these plaintiffs in general that i think that's true yes yes or and for that reason can he say what did he say about why the violence was a particularly compelling reason for this case involving these parties to litigate this matter in the united states rather than in the colombian cour well i think he he yes he said because of the the the general culture of violence in colombia and the fact that the issues in this case arose out of a civil war wrong there was never never in this case a showing of good cause by the plaintiffs to proceed under pseudonym as we explained in our brief the plaintiffs began using pseudonyms through two protective order did not hire a mathematician answering your honor in america the court specifically how the protective order did not rule upon or reexamine the issue of any plaintiffs entitlement to proceed under pseudonym in the st place in that order again at four for all five of the appendix judge march plain that the question of entitlement to anonymity under their protective order we are fighting today over the district court a modification of the protective order it is only the protective order that prevented defendants from disclosing that when defendants learned the true names and other information they were not permitted to simply go out and publicize those the next day so of course were fighting over the protective order and that's what is at issue here  and in fact this this case demonstrates why the good cause for modification should be required because what happened here was defendants filed their surprise motion to remove  the anonymity protections in the run up to sever a judgment we have responded to their motion responding to each specific point that they raised that was which was primarily about change conditions in colombia since the form on convenience ruling and we amply demonstrated that conditions have not changed any material way and if anything they've gotten worse the the district court then said we had not met our good cause bert that was pulling the rug out from under us because we believe that we were responding to a motion that had been made not that the burden was on us to establish the need for protection that had been granted years before second counsel focus on the notion of a quote specific concrete and personal threat to these plaintiffs that is not the standard your honor if you look at the court underage plaintiffs that a specific party hadn't been identified there that had you know threatens to embarrass or stigmatize that plaintiff instead it was the court's ruling was based on expert evidence and on common sense about what was likely to happen to this type of plaintiff and the same reasoning underlies the extensive provisions in in florida law in other states regarding protection of say sexual assault victims and criminal prosecutions and such it is perfectly permissible to make a categorical assessment that this type of plaintiff this type of party is under threat based on the circumstances and based on the experience of of similarly situated individuals sir the counsel suggested that the district courts for monton vini and order was based on the general cultural of violence in colombia and that that's also the evidence that plaintiffs submitted and in connection with this motion that is simply not true we submitted expert declarations and we submitted reports of human rights organizations and news organizations letters from members of congress these sorts of things that specifically identified the threats to people participating in human rights  cases and that's where the fundamental inconsistency between both the form on convenience decision and our evidence on the one hand and the district court's order here on the other hand comes up the district court orders said we had not shown a logical connection between our participation in this case here and threats of violence in colombia but the form one can be man's if i may finish the sentence you honour's the form on convenience of decision recognizes exactly that connection where it says that the plaintiffs fears about retaliation from current or former members of paramilitary groups operating outside the justice and peace process are reasonably justified and that the litigation was dangerous regardless of whether paramilitary figures were directly implicated in the litigation that's at pages