hopefully we're not going to need all that paper or last cases seventeen dash one five two six seven department of called us at all versus  as my partner same danning your honour's a number of issues have been raised in the briefing on this appeal but i'd like to focus my time here on the second factor set forth in the us supreme court intel versus advanced micro devices case namely should the burden to show that a foreign court is receptive to discovery in connection with a twenty eight u s c seven hundred eighty two application live with the applicant and i want to focus when you address that issue could you touch upon whenever you think it's appropriate whether the district court actually placed a burden or actually looked at evidence presented by both parties on the issue regardless of who had the bird yes your honor i certainly will address that and so we can we can start there so your honor in its in its opinion the district court said that you know considering that both parties have provided dueling positions with respect to where the burden lied it was going to consider the can considering the discretionary nature of the determination the court is inclined to look to both parties to offer support regarding the respective positions on the wrist rest of to video hsu and thus of the party believes a factor militates in its factor it bears the burden of supporting its position so it basically said both parties had a burden so that that's what it says and it's  its order your honor and basically what they're ours are story lines of cases out there there's a line of cases that puts the burden on the applicants to basically prove recip to video the foreign court there is a line of cases out there with second and third circuit supporting it that basically places the burden on the party opposing the discovery to do to actually show non recitative any of the foreign court and then there's a third line of cases with the recent first circuit case that follows where the district court is that basically both parties can can put in some evidence but really the underlying question your honour's is whether whether what's being proven by the burden is an issue of recipe by the foreign court or non recitative it by the foreign court so basically where sort of the the underlying presumption on the burden on the burden lies and i think if you look at the intel case in terms of the second factor set out there what that factor ask or to look right under so under seventy two what we don't want or i think what the supreme court is saying in there and and pulling that factor directly from the senate report when seventy two was passed is what we don't want is to spend tons of judicial resource and party resources on evidence that's never going to be received by a foreign court be it because the court is not receptive to it or because there's actually no case so you know and one of the things you know our honor the reason i wanted to focus on this point is in light of the december sixth supplement that the applicants had filed in here in the in this court which is basically an order from the tribe you know in colombia saying that that tribunal has found that it lacks jurisdiction over their case and asking that the case be reassigned to a different to a different court in colombia so it is the court is that case over it doesn't appear so you know not call me a lawyer but it doesn't appear so from the order that that that the case is over but that court has asked that that has basically said to respond to that it doesn't have jurisdiction and that really gets to the heart of what we've been arguing here all along and what the magistrate judge found in her report and recommendation is death discovery is really not not proper here your honor under the seven hundred eighty two applications for ugandans are talking about the the recent submission doesn't that letter actually show that this case is before at least in a ministry of body and isn't that sufficient under the law in your honor that goes in terms of of the statutory factors in terms of whether a case has actually been filed and whether it's for use in a prison in a foreign proceeding but beyond you so you have under the intel under seventy two it's basically a two part  analysis there are some statutory factors that need to be they need to be met and then if those statutory factors are met the court does not need to allow discovery it basically can then allow discovery after weighing certain additional factors that the supreme court set forth in the in the intel right but i had understood you to be can testing that statutory factor and then also saying even if we found the statutory factors were met then you had the receptivity issue that sounds to me like the statutory factors are now satisfied i'm really looking at is that correct so i i think with respect to the one applicant that has found that has actually filed the case in columbia yes they have filed the case they are they would be an interested person with respect to that case there or they are attempting to proceed with that with that case in columbia i think what we really take issue with your honor is is the way that that it was granted the application because here there are wasn't just one applicant the one applicant to file the case there are actually four separate departments of columbia that filed that filed the request for seven hundred eighty two relief and and only that one is the one that's that that's a party to the case where they found the supplement are you arguing counsel that the one who is given the authority to go forward that you can't share the depositions with the other three is that the law that you will most as well your honor i think the issue of law on that point that we would that we would want to say is that basically they are they were the masters of their application like you know any litigant is the master of their complaint and when they decided to bring it on behalf of all four of them all four of them should be required to meet the statutory elements and if they each one brought their own you're saying you have no objection with it with respect to the one that can meet the statutory elements with respect to that statutory test they say meet those elements yes they they can go forward with the seventy two but then the test proceeds to the second part of the analysis under intel as to whether it should you know whether the discovery should go forward even if you meet the story of how this may dispose of what i hear you're saying and i want to be sure that i missed hearing what you're saying and that is that if any one of these four applicants get to take depositions are you arguing they can not share that with the other three i think absent there being a protective order your honor i don't think that's i don't think that's the case i think you've once you get to discovery you can do what you know you can you can do what you will with it i think i think i would agree with you on that he's asking you whether winning the battle is going to win you the war  well i think with you know i understand the point fully with respect to that point but i think really on recitative any i think is where winning the battle you know wins us ultimately wins us the winds of the war to use your your phrase or out of because you know i think when you look at  that the way that the that the district court applied the burden on there even though it said what each of you bring evidence in you know i think that it can be read you know particularly from the way that the court reaches result that it started from the presumption of non of you know burdens of proof in civil cases usually only matter if evidence is an eck we're poised if you're at the fifty yard line and somebody has got to nudge it across but here the district court says the court therefore finds that the departments have set forth at least some authoritative proof regarding the recip to video of the foreign tribunals to the discovery materials sought so even if the court looked at evidence from both sides doesn't that language suggest that it found that the department's had met whatever burden of proof they had  so two issues there the first is the court the cases referred to this as as the burden so then that's the term that we've been using throughout our our briefing on this but i think really the underlying what's at the heart of it is sort of the starting point whether you're starting with the assumption of recipe or respect to that declaration that the district court relied on it's a declaration by colombian attorney these parties you know is a longstanding litigation on the underlying facts or that goes back to two federal court litigation in new york that same attorney had submitted a declaration in new york and we believe that the district court abused its discretion by not giving sort of the inconsistency is in those two declarations they are their proper weight  the you know what he was saying in the declaration in new york when he basically said you know like apparently the court has now found on december sixth that there was a going to be jurisdiction in colombia to go forward with with the claims based on these types of facts  me and i may get that wrong on who exactly is but i think that the court that it's before is is is a superintendency court and basically what it said is we don't have jurisdiction and we're sending it back to sort of the you know the clerk to sort of reassigned this to a different court and then that court is going to have to determine whether or not it has jurisdiction is the way that it regrettably be new receptivity facts based on based on that that the district court would consider  think i think yes and i think that's that's sort of the underlying problem here with the seventy eighty two applications sometimes and why the burden should be on the applicant to prove that recipe because these things are filed expired a lot of time you know this their original application or was filed this party without any notice to us we had to come in with a vacated whatever and they can be filed when there's no pending litigation so it's only a reasonable contemplation of litigation so it becomes difficult it becomes and many you know sometimes they move in a moving target as to where it is that the court  you know where the evidence is actually going to be receptive because there's no you know they're the applicant is the only one that really knows where they're ultimately going to fall in trying to use this evidence and they are run over time but i'll tell you i'm curious where when a core presented with a section seven thousand nine hundred two a request may take into account among other things the receptivity of the foreign government or the quarter agency abroad how do you how do you take from that language a strong burden on really either side rather then what the district court appeared to do here which was take all the evidence and consider as part of the discretionary factors well because i think while the court is saying these are these are factors that so there has to be a net and so there really needs to be an analysis as part of that discretion of the court as to whether this is ultimately going to be use what is going to happen with this wire you know why are we going to make nonparty witnesses you know in this case that haven't been employed by companies for twenty years sit for depositions you know you know multiples of them you know maybe twenty of them at the end the day and all once they follow their seventy two applications when there's no you know when this may never be used in colombia this is not you know this is just a waste of resources or thank you very much you save your time for  is your purpose are and sharing that with this court and what does it exactly do well your honor our interest as the problems of the republic of colombia is to provide all of the information to the court which it may find relevant knowing the let's get to the short answer what does that actually do for your concern no sharing with the court and things like that but i'm having trouble following what you warning us to glean from this document because in that instance what i see it saying is number one the preparer of this document saying i don't have jurisdiction but at the same time it appears to be sending it back to somebody who really does i have your picture ok addressing that point specifically your honor in colombia there is a specialized court called the which we have referred to as the as i see that is a specialized jurisdiction created under colombian law to hear specifically cases in this particular instance cases relating to unfair competition is that this court that is the court before which the department of can you know matter to filed its claim for unfair jurisdiction and that is the court that issued the order which we have brought before the court on december sixth now that court of specialized jurisdiction then deals with cases regarding who the irrespective of who the plaintiff is and dealing with that specific subject matter however the court yes i see has recently in a manner that has surprised us has determined that because of the nature of the departments because they are creatures of administrative law columbia has a a french admin an administrative law system there is a specialized court where issues pertaining to creatures of administrative law the government agencies of the government companies that are more than fifty percent owned by the government where those issues are litigated before that is the administrative tribunal and according to the juror geographical distribution the administrative determine the assignment to a particular judge to further the proceedings now first of all the departments have filed a motion for reconsideration the jurisprudence in the republic of colombia as is a mile deep where as plaintiffs the sovereign can choose to go before the yes i see or go before the administrative courts well and your point being as this case is that it has no effect your honor it has no effect because the claim is still pending and in the order and the translation that we provided for that or for the court your honor it is very clear that the as i see is stating that this decision does not affect the previous decisions of this court including the decision to admit the court the case to the court that your bottom line position is that somewhere in colombia in some there is no jurisdiction either the cases will be pending before the u s i see if we prevail or it will be pending before the administrative tribunal of communal monica which is a tribunals as in the other which would then  reach the ultimate merits of the of the case that we have brought for unfair competition well and that goes been back to a question that was asked both to go until then are you the receptivity is that going to have to be redesigned no your honor why because first of all receptivity is is in the case of colombia is something that if you look to how the receptivity factor was an unstated by intel if you look to how judge to look to both sides for evidence on the receptivity factor and he determined that colombian judges would be receptive to the evidence that is was sought here because of the authoritative evidence that we had provided to the court the appellant's provided none on the receptivity factor and measuring the issues the court decided to look to both that comport with this court's ruling include ricci where the court looked to both sides to the full record to determine what the where where the where what the evidence was on the second intel factor and it also comports importantly your honor with intel  intel the court was urged to provide a rule of application to provide some some definition to these factors and the court specifically declined and it is clear to us your honor that in cases in seven hundred eighty two that that may come before the court there may be many factual scenarios where it is appropriate on those facts to look to the applicant perhaps to to show that  the tribunals would be receptive and that was the holding for example in the green development corp a case that that is cited in our papers where the case was pending yes but it was before the supreme court of the foreign jurisdiction and in that case the court felt it appropriate to request that the applicant demonstrate that the foreign tribunals the supreme court would indeed take cognizance of the evidence that is not the issue here of course where we are before and in very the very beginning of the proceedings but we're before a trial court which of course with the will will take over and it was also the ruling the decision to look to the applicant was also appropriate on visto which this court ruled upon in which on the facts of that particular case the court ruled that it was appropriate to look to the applicant for some evidence that in that case the canadian law society would accept the  evidence that was being sought however both of those your honor are examples of the proper exercise of discretion which is counselled by intel which says that without providing a bright line rule the courts should consider these factors and may take them into account that is utter and broad discretion to be to be exercised with reason on a on a fair in principle basis which is what judge toler has done he has as was mentioned previously here he has looked to both sides to provide evidence on receptive and factor and in scenario he found that we the applicants had provided authoritative evidence and they had provided none and found that the balance of the of the analysis was that the second factor weighed in our inconsistent with the with his declarations in previous litigation in new york amongst these parties and it could not be a we could not disagree more on that your honor in new york mr miranda opined that over a rico case which is what the new york case was under civil rico that that case could not be brought in columbia no surprise there what he did say was that and i'm in a quote from his from his from his his his affidavit there in some i believe that if the petitions of the complaint or some of them are presented to colombian judges based on unfair competition they would surely take cognizance of the case since some of the effects of the conduct described took place in colombia that is not an inconsistent statement that is not mr miranda saying an unfair competition claim or the pieces that would make up an unfair competition claim of the rico case in new york cannot be presented to the colombian judges based on unfair competition he's saying the exact opposite in that sense it is a prior consistent declaration and that is a point that is repeatedly overlooked mandela another point that i like to bring before the court is mr mandela mention that there should be an assumption of receptivity that there should be that it's not clear as to whether or not the court should require that the parties prove that there is receptivity or that there isn't receptivity as we have mentioned but as as i have mentioned before i but we believe that that is something that should be properly determined within the discretion of the district courts exercise based on the specific facts in front of him where you think but but that's a decision you make x and t right whether or not you the burden of proof questions differ from a presumption question you can put the burden of proof on one party or another but you may operate with or without any pre priest danding presumption in other words you can say i presume that there is no receptive eighty burden on you to show otherwise or you can say i don't have any presumption one way or another about recip to vittie your burden to prove that there is or there isn't those two things are not necessarily intertwined are they you are correct you're on however the point i'm i'm going to trying to make is that in the case of some applicants in the case of some courts in the case of some foreign courts there is presumptive evidence that they would be receptive and it is whether or not they are members of the hague convention on taking evidence abroad in this particular case this particular foreign tribunals is a part of the republic of colombia which as of two thousand and twelve thirteen is a member of the hague convention on the taking of evidence of fraud and other courts have found that that is presumptive evidence that they would be receptive to evidence gathered pursuant to seven hundred eighty two what i'm what i'm trying to point out your honor is that in addition to the factors that can be on both sides in this particular case and in this particular instance there can even be a presumption because colombia is in fact a member of the h get riddance convention the taking of evidence abroad and so not only do i point to the broad discretion of the district court which was exercised in this particular case by looking to both sides for evidence on the particular point to rest  also that in this case there is another element which is that there could even be a presumption which has been found in other cases to to inform the court that without any other evidence the fact that they're requesting the tribunal before which the evidence is to be produced is a tribunal of a country that is a member of the hague convention on taking evidence abroad is something that could inform the court as well one final thing your honor is that regardless of what the line of rationale is that that that is ultimately a spouse by the court be it the line of reasoning that is a spouse by the case the ninth circuit in one con the eleventh circuit here in its previous ruling and indirectly rechy which only very briefly covered this particular point but other circuits have found that the burden is on the respondent to show that the fine tribunal would be unreceptive those circuits principally following the second circuit's lead in the europe made a case of the second third fifth and seventh year on or under either of these whether the burden is on both calling it a burden or whether the the parties called to provide evidence on the factors are both whether the burden is on the respondent both of those favor favor the applicants here needs of the court to have evidence on this there is no line of cases your honor that places the burden consistently on the applicant but even if that is the decision of this court your honor there would be no cause remained because even if that is the rule and unseated by this court we meet that burden as well or this race will thank you very much thank you to highlight the second part of the paragraph that mr s of it was in read where mr low and on your new york says but the submission of evidence that would determine the outcome of the litigation cannot be successfully carried out due to the practical limitations to which the consular officials are subject in foreign countries and to other difficulties pointed out in the process of gathering evidence so at a minimum mr lind created a credibility and in a stoppel issued by submitting the two decorations one in new york to prevent the case to being  being transferred on a form non convenience motion back to columbia and then now that the case is in colombia taking the position that you know that it can properly be there and that credibility issue should have been weighed by the court and not weighing it was an abuse was an abuse of discretion and i would there is going back to the question that i was previously asked is it's hard to present evidence of recitative any when you don't know where the case is ultimately going to be to be litigated and i think in our prison would be that by creating that isn't that issue of material fact  or i'm sorry if i creating that issue of with respect to the two declarations that should have been waived and weighed in i would and i would point this court to the for credit suisse decision where it did that in a sevent issue of abuse of discretion and here going back to that point of the evidence you know i think it when we go back to the magistrate's report and recommendation the part of her report a recommendation on the second factor that was not accepted by the district court is she said i can't wait second factor here because there's no case pending and so i think that goes to the point of you know you know they're you know other than pointing to the inconsistency in what their evidence is you know they still they should've you know under the situations they should have had t recent decision of of of this court and i think what's important to look at and in that case is that was an application made by the penny meaning court itself and i think that's an important sort of distinction within the seven hundred eighty two statute is that there is to really types of groups of people that can ask for relief under seven hundred two you can have the foreign tribe you know directly come in under the hay commission or some other letter rather tory and ask for evidence but you can also have interested people come in and ask for evidence and when you an interested person come in and ask for evidence they should have that that burden of actually proving that they're going to be able to use this so we're not wasting judicial resources seventeen thousand applications i'm sure the court is aware are becoming more and more frequent you know in federal that the items that you put in the declaration should have been weighed but then you also said that the other side should have the affirmative burden of proving receptivity and now i think you've said a number of different things which under what standard should a court in your view make the receptivity decision does the other side have a preponderance of the evidence proof level a beyond reasonable doubt there have been saying evidence what is it he would have district courts apply here you know so i think the the standard that's been used by some of the other circuits is authoritative proof and i think that's i think what we would posit is that the applicant should come forward with authoritative proof that you know with respect to this factor and and the factor  isn't just an recip to you know if we look at the intel decision it talks about you know having taking into account the nature of the foreign tribe you know the character of the proceedings underway and the rest of to vittie of the of the foreign government so i think you know and  think the reason that it's outlined that way would be because you know there are cases where there may not be a tribe you know there may not be a case pending and so it's important to understand where the applicant ultimately wants this this discovery to be used and since they are the ones asking for relief since they are the ones that you know know where this case is going to be pending if it hasn't yet hasn't hasn't yet been filed and they should have that burden by authoritative proof to show that there is going to be  authoritative proof i think though the ones that do relate to authoritative prove are the cases from the second in the third circuit where the birth where the the issue is showing non non rest you know where you start from the presumption of recipe and that the court is asking the party opposing discovery to show non aggressive to view i think that's right but i think that language has and i can't point to particular case but that that language of authoritative proof permeates the seven hundred eighty two cases throughout beyond just those in line with the second and third circuit you're saying that while the second and third circuits have said research require that that we require the opponent to show authoritative proof that the foreign tribe you know would not be receptive that we here in the eleventh circuit should require the proponent at the discovery to show authoritative proof that it would be accepted i think that would be in line with the with the aims of efficiency under the statue yes you're all right thank you right that wraps up our week and court is in recess