a bank and england after objectors filed their notice of appeal the english court of appeal deny that both discharge applications and final not appealable orders from them totally without merit totally without merit that's exactly right your honor as i understand it the declarations here state that there's an avenue for submitting this evidence to reopen those cases there is a procedure under english law to reopen final appeals we believe that that does not support this section seven hundred eighty two application for a number of reasons first well i guess the first question i have is and so in front of me and in front of the court that was in front had this in front of it it had to decide whether this was really moved or not and i'm suggesting that that on that determination it was a discretionary decision that it wasn't moved and why should i say it's an abuse the factual circumstances have changed since both the magistrate judge and the district court looked at this issue the orders again but i'm trying to figure out if they've changed do i have the authority to look at the changes and change the order here i believe you do honor your honor under abuse of discretion standard well i believe this court has the authority to look at it under its authority to its inherent authority to supplement the record to take judicial notice of documents about which there is no question about their authenticity and why wouldn't i have to say ok if we've got new stuff coming in it looks pretty bad let's send it back because there's no dispute here between the parties about the importance of the documented about the effect of the documents even now well there's no dispute that the discharge applications have been denied and final not appealable orders mr crap and i was own expert says that the discharge applications have quote been finally determined against him and also that the denial of the discharge applications are considered final but if he were to get discovery and then could make a motion to reopen then that which apparently is allowable because one of the english barristers in an affidavit i mean we have that that is a process that isn't just speculative it is one that's available i'm just not sure it's a pretty low it's a pretty low burden for them to on to establish that it's not men i agree your honor section seven hundred eighty two creates a relatively liberal regime for discovery there's no question about that so if we were to remain on the to the district court would we be right back here in a couple years like it at the same questions before us now i think you might be because if the district court were to look at the evidence that is has been presented to this court in which i think this court can construe can consider  first i think the case would be found moot but you're asking me if it was not found moot i think mr crap and i would be unable to satisfy the intel standard at that point in particular the second and fourth problems the english courts have already looked at and completely rejected the exact arguments that mr crap and has presented here for why he needs the discovery in the united states this isn't a judge smith's february fifteenth order which is one of the documents that we've requested this court to judicial notice of so you want us to look at that and be the ones to evaluate whether the proceedings are ongoing in england or whether they're that's what you're asking us to do i think this court can do it and i think because there is no dispute between the parties about the status of the discharge applications which i would remind the court is the only use that mr crap and i have suggested he needed the discovery here for in the united states since there's no dispute that the discharge applications have been denied and final non appealable orders this court can rule on this case and find that it is moot but ok so let's say we say that mr crapping off has met the low burden to go forward the district court if it if you're also asking for a ruling so let's just say and you want it to be dispositive right correct your honor yes so let's say we agree with you on that and it goes back and i and i'm assuming that your argument would be that we can't apply a harmless error because it's a different standard of proof i'm just you may not be making it those arguments but just if it went back move ness is something that can be re examined at any stage in the proceedings as well correct correct or on so something could happen from now until then that could still make it moot i believe that's correct or are you can occur at any point at any point the court has that the court can examine that that is correct your  so it would end if we decided it's not moot here and we're going to get to whether it's dispositive or non dispositive a district court in the future would not if it were remanded would not be precluded from considering new evidence that comes about on mootness the potential problem with that is if this court on this record finds that this case is not moot i believe it would preclude the district court from finding on the same record that it is in fact right so that other but always but we wouldn't need to find that it was tore not move we could say that's not something we want to do because we're here on an abuse of discretion we want to give the dischord first opportunity we could do that ruling and the district courts denial of relief from that ruling on an abuse of discretion what is the big deal about how the district court reviews the magistra court the distinction between the clear error of you know i'm not asking you to what tell me what the distinction is it doesn't matter what happens in the district court or in the magistrate court when it comes up to me i have to do this on abuse of discretion so i look at all the evidence and say was there any abuse of discretion in making these decisions so what's the big deal about whether the district court examines this by clear and convincing or the district court examines a novo what's the difference i think i get why why is there a difference under the clear air standard the court is the district  was precluded from considering new evidence that occurred after the magistrate but i can use it or it the and so what the but i can consider this if i can do i can consider any evidence because discretion standard as it did in this case we don't care what the district court says its decision and we review it for abuse of discretion and that's what we do here we would say everything here we're looking at it did they abuse their discretion in coming to the end result and or story i would say that the district court abused its discretion the result that it required what do we care all we're going to say is is there an abuse of discretion in denying or not denying this relief the abuse of discretion occurred by the failure to consider the subsequent developments in england but we've had  i would say were in front of the district court except the district court did not consider them why we are there in front of me i would suggest that if this court holds that the district court applied the wrong standard of review to the magistrate judge's order it would need to re man to the district court was he made and that is that in these circumstances what kay says that because i tried to find it and i and i'm trying to deal with this in the most efficient manner if you will and i'm a big abuse of the i'm a big standard to review man but i'm saying to myself if the district court just sent it to the magistrate court to give them just some things to think about and then they finally issue their decision or whether they send it there and there's an actual decision made and then appealed to them and then they make their decision it makes no difference it's like we do  well so security cases so security cases come to the magistrate court magistrate court makes a decision the district court reviews what they say and they make their decision and we say we do it on the same basis  district court did abuse of discretion and we're saying nothing but what the district court says is of no essence to us and i'm trying to figure out why you're making such a big deal i can't find a case where i'm not going to put all that evidence in front of me and determine whether there's an abuse of discretion i would suggest that the rule is set forth in federal rules of procedure seventy two which sets forth how the district court is supposed to proceed dispositive it goes to what what magistrate judges can do yes your honor so i couldn't really find any law that there is some things there's some dicta out there but i couldn't really find any law that says whether it's dispositive or whether it's non dispositive but if in fact can do it i mean i mean they can do part of it but it has to be reviewed to now filed by the district court that's correct your honor and so are you i guess you were talking abuse of discretion to judge smith are you aband discretion not at all your honor if the magistrate judge in fact issued an order and the district court reviewed it for clear as it did here it was beyond the authority of the magistrate judge to do so because as we've argued in our briefs it is a basis and it is a dispositive order why can't the district court i'm sorry i'm not sure quite understand the question around well you suggest that this is dispositive order yes or and you suggest that my standard or view is abuse of discretion yes so i'm saying to myself if i can review this on an abuse of discretion even though a dispositive order taking your allegations why can't the district court because that's not what federal rules you know unless you have an idea that's your not what your interpretation of them says what i'm suggesting to you is that in this particular situation since i can do it on abuse of discretion it would not be totally unusual for the district court to also do it under to be used discretion i don't know that what you're citing in the rule what part of the language of the rules as they cannot do this is to be use discretion there's only one thing i know of that would say that and that would say that if i say it's a dispositive motion and because it's dispositive motion then i have to do it on noble review but this could be a  dispositive motion under those same cases and yet i don't review it on a did novo review i review it and i've used discretion review giving the underlying decision makers all of the discretion they want to make this decision here and i would suggest that you look at the administrative enforcement actions cases that we've cited to in our brief which i believe are on all fours here in those cases courts throughout the country have held that when a  of discretion by this court and so this is the exact same situation that we're in here but your argument i'm the way i'm understanding your argument is that even though we would be abusive just question if the district court looked at the case to the wrong lands that a legal error then is is a problem and generally if they didn't apply the proper standard of review we send it back unless it would be harmless that's exactly correct and you're saying it would not be harmless it would not be harmless because that ok so there really aren't but you know that i guess from the dispositive the non dispositive which is something that i guess i'm struggling with here because that generally if in some ways this looks like a discovery order and generally in a regular civil case a discovery order would not be something that would be dispositive it's contained within a proceeding so if we were to find that the system spaza deflect the administrative subpoena cases which i agree have some probably the closest we have you don't have any case exactly that says that then obviously i always worry about what's so different about this type of procedure that it should be dispositive as opposed to just it's like because you know every denture rowling's discovery rowlings within a civil case we say yeah that's not great that you you know that you lost or whatever but there's a mechanism in play that can kind of correct it at the end even though it's not of great moment to people after they lose the trial then they have to appeal but there is some review of it at that particular time if they preserve it here you have proceedings this is going to necessarily be there is proceeding somewhere else and then this is separate and apart and my understanding in some of the like because like google so not a party to the lawsuit in europe right that is correct or so there's no way dispositive potentially although i think again the administrative enforcement actions speak to that not being the end of the involvement here but what those cases say is when you're when you finish ruling on the parties rights regarding enforcement of the subpoena that makes it whether there might be a contempt proceeding later on for someone's failure to comply with a valid enforceable issued subpoena is does not affect that then if we said that it wasn't moot then if you're asking this court to say it was the dispositive order and that the district that the magistrate didn't have the authority to make a ruling on and a dispositive order therefore the district court should not have just repeat it for clear error should have reviewed it to novo and that that the fact that the lens of the district court looked at it through it's exercising its discretion which it has to consider additional evident that evidence including the evidence of the subsequent developments in the english proceedings which have i redid the proceeding and court it or have at a minimum affected the calculation on the second and fourth intel factors which relate to the receptivity of the foreign court here the court has said it doesn't care about this information at all and on the fourth factor which is a balancing of the need for the information against the potential risk of disclosure sixty b that the propre of the property the rule in england is civil rule of procedure fifty two point three zero our expert on english law has submitted a declaration here stating that it's a very high burden to meet you have to show not just that there's new evidence but also that the evidence would have affected the outcome given the february fifteenth twenty thousand order of judge smith in england in which he considered all of this evidence without it in hand and nonetheless said you don't win on your destroyed applications we would suggest that mr cropping up has no likelihood of success on succeeding on the reopen it seems that your experts both agree that fresh evidence could lead to the petitions being opened they have otherwise been conclusively resolved so how do you propose we draw the line between proceeding which way to proceed in that is a reasonable contemplation and one that has been decided but that can be reopened is that still proceeding reasonable and reasonable contemplation let me make three quick points about that so first i would suggest that the course of a second circuit zero made by decision which says when someone applies for evidence to use in support of the proceedings on the merits it's not appropriate to then convert the section seven hundred eighty two application into seeking evidence to support a motion to reopen the concluded proceedings did in intil express the section seven hundred eighty two application here cabined his use of the information and intel says you have to show that the information is for use in a proceeding in a foreign tribe you know that is interest to say i have a case i want the evidence of to say i have a case and i need the evidence for the following reason the following reason here was the discharge applications those no longer exist if in fact he needs it for a motion to reopen that would be a separate use or perhaps even a separate proceeding i would also say this evidence is not new as i just said a few moments before judge smith considered all this evidence without it in his hands and said it would not make a lick of difference in the outcome in england and so i don't think mr crapping off can the standard under civil procedure fifty two point three zero you thank you we've taken you over so you really don't have any rebuttal time but after we hear from the other side and have my colleagues have any questions all give you a little bit of time thank you abused its discretion in its july third twenty eight hundred order everyone agrees that the standard of review is for abuse of discretion in answering that question the primary question in turn is whether or not the magistrate's order was properly characterize as a non dispositive one and therefore reviewed for clear air or whether it should have been characterized as positive one and the magistrate should have instead issued a report recommendation that would have then be reviewed s and then we would be right back here with this court reviewing the district court's order for abuse of discretion bricked having done the clear a well it's certainly more restrictive stand yeah and that is why they are seeking that i mean i would point out that district courts at least in the northern district for the last fourteen to fifteen years have uniformly reviewed magistrate orders have treated magistrate orders anything that we see otherwise because at the administrative subpoena is what he what the palin is arguing is the closest i can and that clearly would be dispositive situation and i'm just trying to get my head around how these things come up because it's not like it's not the same as when both sides are part you know on both sides or parties things that can happen in the proceedings but i don't know what a court over there could do with google so one way or the other so it seems like this situation could sixty eight which enumerates various issues that magistrates may not decide on their own and that list includes matters like summary judgment motions motions for judgment on the pleadings a motion to dismiss an indictment implements the federal magistrate's act and under rule seventy two the test is the following whether the magistrate order conclusively resolves a claim or a defense for a party none of those three criteria are satisfied here in the appellants have repeatedly disclaim the fact that they are parties and all of their briefing to the magistrate and the district court they have said they are non parties and they are not a party so what's your best legal authority and you've said that all the district courts have been doing that's but i'm not going to consider that that's not published so what is your best legal authority for the position that ruling on section seventeen eighty two applications are not  positive well interestingly your honor this court has a published decision from two thousand to the four pillars of the every denison case and we cite that in our brief and in that case the factual situation was was virtually standard to the magistrate court and it also applied the abuse of discretion standard to the district court did it say whether it was dispositive or not dispositive those that issue was not discussed at all in that case so the case obviously does not answer the court's question squarely but i think it suggests that the court would consider a a magistrate order on a seventy to application is a non this positive one in that context but what about the play on if you so so flam would be the third point after the  magistrates act after all seventy two we get to this court's decision in flam and it's embrace of the functional approach in deciding whether or not a seventy two order is in fact as positive or not as positive in flam we help that think it might be the end of the road for the appellant in this case but it's certainly not the end of the road for mr crop and off he so google as counsel has conceded has not even made an appearance at any court at any level yet we have no idea how google is going to respond to this appeal but hasn't the time for object past their time to file a motion to quash or to object has passed but that doesn't mean that they're going to necessarily give up all the information and we i mean i think there's a strong likelihood that mr crump enough will it be engaged in further motions to compel with google should google refused to comply with the subpoena or should people comply and part and refused to comply in part that's an a question that we just don't have the answer to right now and it doesn't seem google's waved any right to resist compliance with the not be additional litigation in the trial court in connection with the subpoena and if that's the case then the order is was correctly characterized as a non dispositive one as opposed to a deposit let's talk about this if you don't mind like to ask you were where do we confused the doctrine of movements with the question the statutory factor of whether or not the material is sought for use in a form proceeding in re birrell this court it's a case cited in their opening brief by the way setting forth the standard for this this court identified the following test for mootness and the test is the following if this court were to rule in favor on the merits of a party would that party then be entitled to some form of relief if the answer is yes the case is not moot that test is easily satisfied in this case if this court were to rule in favor of mr crop and off on his on and affirm the district court then mr dropping off would be entitled to fault some form of rel in the sense that he would then be entitled to pursue this information from google so there is no article three jurisdiction issue here there's no lack of case or controversy this court can order the relief in that it can allow mr cropping off to pursue th from google the separate issue which has been conflated with moot this is whether or not the information sought is for a foreign proceeding which is the intel factor whether it's reasonably contemplated that the information would be for use in a foreign proceeding as intel said the foreign proceedings need not be pending they need not be imminent they need only be reasonably contemplated and as their experts have conceded there is mr cr can still present that information to the foreign proceeding but i have no concerns about that section you know seventeen a to the way you're asking us to interpret it just seems to open up to district courts for a fishing expeditions you know what about you know pre litigation discovery i mean does that fall under section seven eighty two as well i mean can say i guess i'm reasonably contemplating filing a lawsuit in england contemplated when in your view i guess whatever form proceeding be sufficiently conclusively resolved that discovery under seven hundred eighty two would not be available well i think  instructed case on that is the court's nine hundred seventy seven opinion cited in our brief in re request for judicial assistance from the sole district criminal court and in that case the applicant came to the united states from proceedings in south korea and sought information under seventy two the opposing party filed a motion to quash and said look the trial proceedings in south korea have concluded they are now on to the appellate court in south korea court should deny the application because you can't admit new evidence on an appellate proceeding in south korea and this court said we are not going to get into those technical questions of comparative law analysis as to whether or not the information may or may not be admissible in that form proceeding they've shown a reasonable likelihood and this is pretty intel by the way they've shown a reasonable likelihood that they'll be able to use that information and again it's just for use it's not it doesn't need to be admissible it doesn't need to be relevant to be for the case here i mean what could all of this been done in in england they have subpoenas or some type of comparable process it seems like it england and sure we'll probably has offices there so i just try to make sense of why it used to be in the northern district of california i believe it was filed here both because our courts afford litigants that opportunity under section seventy two and congress that for this very reason and google's headquartered here and so it seemed to make the most sense to bring the seventy two application here rather than to pursue that again your honor i'm so i am not a legal expert on british law and i don't know what type of discovery procedures are available there and i think the precedent this court's precedent included would suggest that this court need not be an expert on british law to try and decide whether or not an applicant here is entitled to information for use in a foreign proceeding but if we had different question if google were a party well i think if google were a party in the in the morning yes well certainly then there i would suspect again i'm not a british law expert but i would suspect there would have been some discovery mechanism under british law through which this material could have been sought and i think that would have weighed against using seven hundred eighty two as a vehicle to obtain th so i think while you can you decide whether the issue is whether it's moot this court always has i think then her inability to determine it's moot ok so if i determine in my own discretion that based on this new evidence you're saying i can decide it can i look at it should i grant the motion for judicial notice no you should not because because that's the evidence he wants to get in well this is court i mean what they're asking this court to do essentially is conduct the novo review i understand but if i can detect if i can determine moodiness and there's more evidence to be put in why can't i grant the motion for judicial notice and decide what the evidence is and break by determination because i think the first step in that analysis pursue the sort of you know i go the other way and you find that there is well then i certainly the court kid it is for me my worry about this is this here i am looking at this decision i know i have an abuse of discretion  standard or a view now i have new evidence that's come up somebody wants me to look at that evidence and make that decision my decision i'm trying to figure out from you based on your viewpoint whether i can do i think if the court so first of all we don't think they satisfy the new standard if the court is really good i would also just point out the fact that these the two final orders that they point to were both issued after the district court issued ok so i mean all of this is way into whether i can look at this new evidence and if i can which you say i can make a decision a new bow if i can make this decision then why can't i look at this evidence to make it and then i can make  decision or what are you telling me i'm going to send it back to district court to make this decision if i don't have to send it back to district court decision i can make it here while i think i think and it why shouldn't i make it based on this new evidence well i there that you would argue to the to the to the district court as to why this wasn't well their own expert concede that's not moot if you if you well i've based on the evidence from the district court but now we have more evidence and that's what's in the judicial this case this court could wade through the seventy plus pages of legal opinions that they have dumped in front of it and it could wade through the new the legal opinions and the expert opinions decipher that information for this court so that this court could then try and decide whether or not the case is moot there's no reason for this court to do that i mean unless so here's here would be a classic example of moving this suppose we all woke up this morning and google ceased to exist and there was no possibility that mr cropping off would be able to obtain this information from google then that would be an easy question for this court that you this this court would be able to say as a dozen criminal cases all the time when the defendant dies for example then this court needs to consider new information regarding the movement all you're doing is arguing the streams as to whether it's moot or not when a decision is final in the supreme court and they've made that decision and its over the fact that it might be reopened for some extreme other circumstance would not seem to be something to me that i have to say ok the guy's not dead so i can say is moot that's what you're really saying well i think that what you're getting to is the question of the admissibility in the u k courts but that's an issue that should be left to the u k proceedings this court no i have i guess i have a question let's assume that we had met the documents that have what has occurred there anything in those documents that undermines what the expert sad about a motion to reopen is there anything that we can know here that is a motion to reopen still available not only is it available and they haven't they actually can see that it's still available their experts acknowledge the fact that it is available but mr cropping off has already prevailed on one of these motions to reopen just last year so the notion of the minute i don't believe their experts see is not available based on the new evidence i've never seen that so i may have misspoken what i what i meant to say was that their experts have conceded that that procedural vehicle remains available in the sense without evidence without with the new evidence in other words he would need to present the courts with new evidence you seek to reopen the proceedings with new evidence it's a part and parcel of the same proceedings that have decided but you bring new evidence which would be the evidence that he is seeking to obtain from google and i would also say that it is that does that affidavit say that let's assume that the other documents are admitted is a motion to reopen still available is he say that in the affidavit it's still available even if the procedural status is what those documents say i believe so in our expert says the same thing if you're going to i mean if you're going to allow this new information in then we would you know obviously request that you allow our new new information as well in our expert says yes that obsolete remains avenue that is available to mr cropping up to introduce new evidence and i would also just say have any additional questions here six minutes over just like they were do you have a need to either of you have any additional questions palak all right and this matter will stand submitted thank you that's fair arguments