protective order prevents me from disclosing to the panel of this court which i understand is the panel and case twenty two thousand four hundred and thirteen the civil case prevents me disclosing to this court the nature of the new information we have asked to share with direct fresca the court will close notice that our motion to consolidate which we filed in both cases the copy of the notice ultimately conclude that the information is not relevant or is not persuasive but i don't know where all the other situations in which one court says you cannot share this information with another court and that's all we're asking here we're not asking to make anything public asking to share under seal with gedge presta and under seal with this court the information he thinks relevant to judge press the determination of a recipient i cannot tell you publicly what the identity for one or two i don't believe and i certainly can tell you the identity of the recipient and we contend that information in addition to other information is pressed his decision on sealing the deposition and the serial on day one and two weeks later a different panel of this court decides that judge nathan committed air in refusing our request to mod given the opportunity to decide whether that information should have error on her decision and so we're just asking for a fair opportunity to present these arguments this court this court may not be persuaded i understand that we don't we don't expect that just because a motion consolingly when we are just asking for a fair opportunity to make her argument and the proceedings in a district court where we have four district courts reaching different decisions i also think apart from politicians being the only way to ensure a consistent result i think it's also the most efficient way to resolve these cases at this point the briefing in the criminal case is you're in the criminal change me that's for argument you can set argument at convenience and i will be there and i'm sure the u s attorney will be there as well and so the cases can be resolved with dispatch and so i don't think there is an efficiency argument to be made the consolidation is an appropriate those are the main points i wanted to make and with that i'd like to just reserve what time i have left of course i'd have to answer whatever questions the score past that's fine here i do think i can say that the issues are occasions before court one and court two are related to be from notation and the civil case i can say that i will often say beyond that that it shows the relief we're asking for which is the ability to share relevant information with a judge separable from the merits it has nothing to do with the merits you haven't asked to state a criminal case without asking to state a criminal case a post trial criminal appeal will do no good for the release you are seeking because at that point the deposition material will be released press will have largely if not entirely completed the sealing process and while the categories of cases that are available under the collateral ordered out there and our narrow and i don't disagree the best we think we within the three predator that are necessary to show collateral order jurisdiction alternatively this court can actually side mandamus review of the disagrees with me on that and i think mandamus review would be appropriate here basically for the same reason given  point i make is i don't think this court has to decide the jurisdictional questions before decides the motion to consolidate the motion to consolidate it into a procedural matter within the discretion of this court so the court could decide fact that they don't pertain teachers fiction should be no no conclusion should be drawn by that you are just to consolidate these cases what more do you gain by consolidation that you're not getting from hearing the maybe i misunderstood the posture of this argument i was under the impression that the court because the motion consolidates filed in both cases but the st filed case was the civil case that the panel deciding the civil case would ok with respect to the decision of kedge may send that you're challenging our standard review is why if we have fresca we don't intend to make public consistent with our position that a deposition serial should not be unsealed so given that extend that but i'm not sure i understand why you can show that judge  nathan's actions are either eroni is as a matter of law erroneous is a matter of fact or outside the realm of options that's available to her here so i understand the court's question of my points without being able to delve into the merits too much because of the nature of the protective order and the fact that it's public oral d arguments that i'm not allowed to to judge press corps and analysis was information you could share and most obviously that would be as you've just discussed that two different judges came to different conclusions about the government's procurement of this material would that let judge press canal that there's a there's a going to be litigation about this and the outcome should not be assumed what more does judge press  not represent to the court as an officer of the court that it is not as simple as government issued a subpoena the recipient complied and that's about had by virtue of the fact that you would be able to tell judge press now the two judges came out differently on it she knows that she knows it's not as simple a matter as a party just comply there's means that she would certainly know that that's going to be a subject of litigation with respect to the use of the material in the in the criminal case yesterday i think that's  what why does she need to know more than that for purposes of the the challenge to the the disclosure in the civil case  your honor all this is a refrain and i'm not trying to be evasive and i apologize but the name of the recipient the identity of the recipient is a material fa which i cannot share i'm not i'm sorry to press you but i'm not trying to stand this i mean you you've got in front of judge prescott a g get you to show material you've got a protective order that says if any if a party comes and wants to have that disclosed the burden is on your client to show why it shouldn't be disclosed assuming argue when you go i mean you can argue the judge prescott urged her to find that the disclosure to the government is not legally supported how does that alter the judge press because inquiry into whether she should unseal the material because your honor it's not just that issue of whether the material was probably given to the government in the st instance about which there is a very valid debate as we've seen because court one went one way court t what another way there's also an issue about what's going to be unsealed next and in fact whether anything should be unsealed coming forward and i'm sorry going forward in which case fair argument to judge maxwell or is to the judge prescot without the ability to share with her the information we think she needs she may disagree with us ultimately but we're just asking for the opportunity to make that and just refresh my memory my last question did you argue to judge nathan that it was particularly relevant to disclose the identity of the recipient of the subpoena i don't remember seeing that to get yes we can keep doing that that's fine and agree proceed with we're at heading with all this why is it not possible for you to submit on the seal to this panel in this case a letter which identifies court number one and court number two and anything else that you think is relevant to going subpoena what what if anything is criminal in the criminal appeal or the appeal of the it's part of your papers and the criminal case from judge nathan right it is your honor everything under redact this panel criminal case number is correct your honor and until this argument i was not where the panel was also going to decide the criminal case i was under the impression that this panel and its simple capacity was going to decide th papers that disclose that information i think that's right let me let me come up with another way to make sure that we're all sort of grants for is there anything is there something that you do know and or just nathan know that you have not been able to share with  right and this for luminous material how would it be helpful if at all in and in addressing the issues of the civil appeal or in the criminal it would show the and the exceptions to the final judgment rule in criminal cases are rare and this is for good reason as this court and the supreme court have recognized to permit such piecemeal appellate review of trial court decisions which do not terminate the litigation is particularly damaging in criminal case permitting collateral appeal in the circumstances would unto a legal a resolution of district court litigation and needlessly burden the courts of appeals this should not well are are not a right not to be tried it's more concerning a right not to be tried in certain circumstances and she failed to offer a basis for expanding support categories particularly in a discovery materials in a criminal case and she cites no case in which this court has found jurisdiction over an op interlocutory appeal of a protective order regulating use of criminal discovering the truth provided during protective order does not meet as an initial matter does not meet the rd criteria on the decision regarding the protective order will be reviewable on appeal after a final judgment the question is whether delaying review an until entry of a final judgment would imperil a substantial public interest and as a general matter of bail ability of post judgment relief through reversal or big picture of conviction if warranted would protect whatever right defendant claims was a bridge brought by pretrial decision maxwell has not articulated any serious injury that she will suffer if the court if mrs this appeal to the extent that she claims that feeling and feeling filings in the civil case may result in unfair pretrial publicity in a criminal fees that concern can be reviewed by this court on appeal from a final judgment the facts that she can use to to argue to judge press and any other judicial officer she claims that she's asking for a fair opportunity to present arguments to the court and be the order or the protective order provide her with that and in and in terms of it like the terms turn to big issue of consolidation in preparing for oral argument the government took a closer look at the rules in the law regarding consolidation of appeals and will to read be of the federal rules of the total procedure outlined the rule for consolidating appeals and that rule concerns multiple appeals taken from a single district clear that for consolidation to be proper there must be an independent basis for appellate jurisdiction in each appeal there's a th circuit decision on this that particular the helpful it's united states different cases in different procedural postures there are separate issues there are separate records there are separate interests and consolidation would merely increase the complexity of the appeals the government is not a party to the appeal in a civil case which involves questions of public access to two judicial records whereas the criminal matter involves a denial of a modification of a protective order to share information in civil matters and so consolidation of the appeals would merge the  material will hurt her or her criminal trial is that correct that is correct your honor if this is the united states trained officer the southern district of new york has dealt with high profile cases for many years and has had given it didn't defend its fair trials an impartial jury for years and there's no reason to suspect that it would be any different could you tell me the purpose in keeping the name of the recipient secret from the court court one into their decisions could you tell me the purpose of keeping them secret from the court of cases right now could you tell me the purpose of keeping it secret from us between those materials and the st amendment and ceiling analysis and that is what judge nathan found in her denial of the protective order the standard is in is whether there is good  modify the protective order and judge anything found that and just nathan found that that maxwell had failed to show good cause it's simply offered speculative reasons that were but that didn't explain the connection between the recap the request and the government the government's concern is is that if the civil litigants have access to feel criminal discovery explicit permission to provide information basic information about the way in which the government obtain materials to any judicial officers in connection with her civil cases and  would need to provide the materials themselves and she has been afforded the relief that she claims to seek and so she this underscores the government's concern is that what she simply seeking to do is litigate the government's investigative honor and there's also no precedent for amending protective orders to allow for the use the criminal discovery in not criminal cases including civil matters in the light and so this would be she has cited no precedent for the relief that she seeks and there is a reason that the lines should not be blurred like as i mentioned in terms of creating it creating issues in terms of the government's ongoing investigation and creating potentially fence the materials would be available would be made available to judge press under seal but then they would also have to be made available to the move in would would compromise the ongoing investigation but no no but i mean if they could just be a if they could just be given to judge presque that would be one thing but if she's going to make a ruling based on that material they also have to be given to because the judicial officer can't rule on materials she gets x party they also have to be given to the adverse party is that right yes that's right your honor is it the issue apologize i apologize so there was a period when it was not yet assigned to judge prescott and then you had to go to other courts is that what you're telling us yet that practically the entire litigation that that  court a court one granted the government's application st then the government provided a copy of cortland decision support to and then court to deny the government's application and why did you need to go before two judges  pursued this material for purposes of the criminal investigation so are you saying there were two separate criminal investigations there were two two civil cases in which what you were trying to get documents invest that pertained to those civil cases or what yeah that's correct so one judge gave it to you and the other judge did not are we talking about the same material or different material so the government made two application one was granted and one was  that i'm trying to figure out why you needed to make two applications it is if there are two different civil cases two pieces of litigation that are at issue and so the government need to a court number one and a court number two judge drudgery quite understandably wondered why you have to go to two different judges and you've told  spent correctly you did so because these were two separate civil matters in which the government was engaged is that correct that's correct the government honor that that is the government's position the government bought these materials from two different civil cases the government teams materials they be they are subject to judge anything right now mean that in that respect court number one in court number two are out of this as far as the court of appeals which could churn because all of those matter mapi for just made you know in effect as a result of these various maneuvers court number one in court number two whatever it is they did and whatever they turned over to the government all of correct now they can use that material presumably in the sense of mission actually in connection with a criminal case yes and forgetting for the moment watching the big deal about having who has these materials in order to defend its client in the criminal case you think there's something wrong with his use of that material in the civil case a going to judge press or a different judge it would have to be produced to the other civil litigant in the in the matter and the concern is that it civil litigants act that deals criminal discovery that could create problems for the government ongoing investigations and it could also alert target as i've mentioned to you the scope of an investigation of government investigative techniques and evidence gathered and it is for that reason that yes yes that may be true as a general proposition use of that material in the civil action is there some way that his interest can be a car max or less interest can be accommodated  judge press in terms of the provision of the materials it's just press relied on it and the other parties would need to get a copy of it and that is that the concern that that the government has been has been describing for the co theoretical think you're saying the judge judge nathan said go ahead and tell judge prescott anything you need to tell or is that what you just told judge the broadest not anything but that judge nathan provided that judge anything granted  in your view and my understanding is that he's also seeking to provide the underlying with cereals themselves and that raises concerns to the government for the oh i get it so i so what judge because of the lack of jurisdiction and issue here well let me try to give you a hypothetical here supposing the government subpoenas material from party a who is involved in the litigation of some sort and that's how the materials were obtained by party a then the government gets them gets a protective order on those materials in another case involving we'll say mix maxwell miss maxwell says i want i want to share them with with a party i meet with with the judge and all that she can take the materials and share them with the with the court that would be involved in party ace where the case should be that's what seems circular here and you know as contemplated by the protective order crew preclude that yes but you know your protective order has to be grounded in some public purpose that you're serving otherwise there's a presumption that criminal proceedings are open not closed what's what's good what's the logic of keeping the materials under seal in in a hypothetical situation like that issue here is it's about attracting and preventing public disclosure is in terms of what we can and cannot just close and whether just they gave us the release we were requesting the answer that question is no we cannot describe the materials let alone turn them over to judge prescott under seal and we cannot identify the recipients of the subpoena all we can tell just press kit is court  ok as for the rest the government season is going to the other party in the civil case this court can look at the material we have supplied in the criminal appeal it can look at the identity was depositions or unsealed and yet the government on the other hand thinks those depositions are confidential under the criminal protective order and can't be unsealed and so i don't understand how the government can take those two different positions unless decision in the morning will have been enormous and the government says there is no precedent for what we are asking the court to do in terms of accepting jurisdiction over the criminal appeal when we think there is a precedent for how the there any other questions from the cool heads who are i have no further questions sorry to say i do have to ask a few questions just brought us up if if i understood you just now you're saying that it is known that the sealed documents are mrs maxwell step ascension sat right some of them your honor and that's just we know that not all of it your honor well i'm a little confused because to the extent judge prescott needs the sealed materials to fully assess your motion on whether or not to preclude the disclosure of miss maxwells deposition to the miami herald she knows what's in the deposition i mean that's been in front of her for a long time so now i'm very confused as to what it is that judge prescott doesn't have because of this protective order that would be helpful to her to see your point on the ceiling let me try to answer this later on our because obviously there is confusion  motion identifies the materials we are talking about here now they also luminous the depositions which the government has are part of those materials but there's more to it than that i can't nathan issued a ruling that she didn't think anything that you asked her to unseal was going to be probative in your case that you already bore able to tell judge press the relevant material and to the extent you're saying that was an abuse of discretion i haven't heard what it is you're not being allowed to tell judge press that is helpful to the fair decision on your motion in front of her we've now just heard from you that the sealed the sealed one of the sealed documents is miss maxwells own deposition well your inability to share that does doesn't hurt you because dick prescott already knows that so so what are you telling us hurts you because judge nathan said that everything pertinent to your argument in front of judge prescott you were able to tell tell you right now if you are able to make that argument to this court in the criminal appeal and i'm asking you if you can if you don't feel you can say it today with other parties present where is it in your papers to us what you're not able to share with judge prescott that we would see would be would be relevant to your motion to preserve the the order that you have with mrs maxwell she ruled against the that is correct where in your papers to do you explain what documents among the ones you want to where do you explain to us why that's why that's an abuse of discretion with and i'm not sure i see where you you cited two were not able to show judge prescott x or y or z we can make the following argument is that anywhere in your submission i believe it is your honor in the opening brief i would point you to for example or just the argument section which is begin for page twenty three and continues to page thirty three well i will certainly look at it again thank you it's the the other thing is you said that you have never sought to turn it over to the miami herald and i understand that but i mean it's an adversary system if you turn it over to judge prescott what's going to be your argument for why it doesn't have to be turned over against the against to your ad it's protected by the criminal protective order so just as the material in the civil case that is currently under seal or protected by the criminal court why should judge  filing that sex party in the case what's your argument to judge prescott for i want i want to submitted x party and i and you should take it that light didn't the miami herald is going to oppose that i just think it's disingenuous to tell us there's no risk here that it will go beyond judge prescott and i'm trying to see if that's if i'm correct in thinking that or if i'm not help me out your  recipient is the court will understand i think i know who the recipient is and i'm still not sure why you think the miami herald will accept that being reviewed x party what is going on in the criminal case is protected that colonel protective order in the miami herald has not intervened or moved for discovery or relief i should say of material in a criminal case and so i just don't see a scenario