was dismissed over a year before johnson and johnson filed subject motion to unseal the whistleblowers have given the company full document production they've sat for depositions and they're willing to consent to provision of the original complaint how public is this information it's not public you're on there were two instances to which the pelleas have pointed as well as the district court's conclusion regarding the identities of the whistleblowers and whether they're in the they were temporarily available or rather the original docket which contain their real names was temporarily available and accessible no longer searchable not to my knowledge you are about everything that happened in the new jersey action so all under seal no you honor there are declarations which were filed by two individuals in the new jersey action under their real names however there is and i hope you'll forgive me for being careful in the way they say this there is  there has been no disclosure and there has been no association of the names of the de clarence in the new jersey action with the names of jane doe and john doe in this action but it was sufficiently that janssen was able to see and verify who these people were right janssen believes that they have verified who these individuals are however i believe that that conclusion necessarily requires or rather i suppose it doesn't matter at least to the whistleblowers or rather it matters to the whistleblowers that the situation  circumstances in which their names were temporarily disclosed on the docket was due to no fault of their own that was due to an error by the court clerk who could lead to that difference between presumably the declarant in the new jersey action have testified in essence to the same things that are alleged in the instant complaint is that not correct it is correct and what is your objection to having their names disclosed here are objection to having leaders in this case the susi added with or disclosed in connection with the declarations that were executed filed in new jersey click case screams from the manner of the disclosure it's a very different situation to be and in this sort of goes back to the court's direction about us proposing a proper standard in a letter received mccourt last week but the difference between those situations arises from the fact that there is a fundamental difference between someone who serves as a whistleblower which would be the instance with respect to jane doe and john doe and someone who testifies in connection with an action that has already been unsealed and they have been requested to testify in that action forever protected but relator is the only protection and the seal that you have by law is for the government to investigate there's no right to continued anonymity for ever later is there actually the statute  question it continue to anyone of the k it is silent but it doesn't give anonymity whereas whistleblowers are given and that is not correct i would not necessarily make the legal distinction between a relator and a whistleblower i've always used the terms interchangeably but the question that's being put to you is even if you wouldn't do it there are statutes to protect whistleblowers and there is a stand to associate with keith ham actions and the whistleblowers that to provide for continue to be a real leader sta know that's not that's the point right it does not provide for that ok however can you look can you help us with another thing just as a factual now when you say as a matter of fact this information is in public it's a fact that the amended complaint with the publicly available isn't that right that's correct and it and the court said that those that the statements in the new jersey affidavit and the statements in the complaint were very largely effectively the same is that an accurate statement i think they were very effectively saying i think you can set them so what if it's true that the complaint and the affidavits are functionally  the name is on the affidavits which are publicly filed in new jersey how is it anything other then devolves elementary step to know oh those are the relator because there are many individuals who could have accessed the amended complaint and submitted declarations there are many individuals and witnesses in the case that experienced the same type of conduct that is alleged in the amended complaint so i don't believe that there's necessarily a direct connection between the  is addressed it's like the harm to the person who bears the burden which is your client's right yes ok if if there's even if you could say it with dead certainty oh it's them if you could say w high degree of confidence well those allegations look exactly alike does that not affect the calculus of harm i think it does affect the calculus of harm but there's an additional factor that needs to be considered here we not before the court to argue rather before the district court it was not argue that the question of sealing or unsealing versus the relative harm that question wasn't considered by the court was considered by the court was when  the court willing to allow them to remain anonymous and they dismissed their case in reliance on the district court's decision to allow them to remain anonymous while i understand that you think megaliths was the wrong standard to use but that it seems inaccurate to say that the district court did make an assessment of harm because meg was asks the question can you show a definable and distinct harm right it certainly does however would make list doesn't ask is whether a relator or a plaintive who relies on a district courts assurance of anonymity provided that they dismissed their case who actually goes ahead and then dismisses their case and i'm glad you said that because i was reading you reply brief a page four and you see quote here relievers voluntarily dismissed their case with the understanding that they would be permitted to remain anonymous if they did so in the district court ordered as much and you say a nine and go and look at a nine and it's a docket sheet who would you believe or your clients the believe that if they dismissed the case they would forever remain anonymous your honor without breaching privilege that was my understanding from prior coun who prosecuted the case as well as the individuals in this case will the district court certainly didn't order that right the district court there's nothing on the record or i assume we would have seen it where the district courts would dismiss your case and you remain anonymous i don't believe that is on the record that's as close as we're going to get to it with how the little succeed under whatever balancing test you think is appropriate that's what it's going to be now whether it's meg lists or whether it's  there's a bounce a public right of access and most of the case is public right of access and identity or whatever trumps everything else how do you i do better than other cases in terms of the balance certainly i think fundamentally and again i hope you forgive me for going back to the whistleblower word i believe that courts have recognized across the country that there are substantial harms which are suffered  interested in economic and both personal and economic realm said all the cases talk about the vagueness of those harms and the fact that they're not sufficiently specific you can't just say well there are harms ok let's assume there's some harm over here it's that it's not specific enough well the court had asked us in that letter a court directed us in that letter to provide some case law and part of coming in for oral argument i went case what tests are out there talk about instances where whistleblowers are plaintiffs who intend to proceed with their case have cited economic on as a basis for hiding their names from the general public and courts appear to have not universally but regularly concluded that when a relator or whether and when an individual with an interest in preventing economic harm to him or herself says to a court i'd like to go for this case anonymously and the court respond and says well how's a different supposed be able to defend itself he doesn't know who you are how is the public supposed to find anything out about his case if they don't know who you are and what your allegations are and there's a difference between proceeding under seal with respect to the entirety of the case the allegations the complaint the subject matter and what we're talking about here where they dismissed their case and everything they have alleged is available to the public for its review well what is its reputation or harm the same as economic  i don't know i would argue that they're both two slightly different types of harm because one hits your pocket one hits you standing in the community from reputational standpoint and from an economic standpoint here however i'm not certain that there is a a functional difference in the result here because if the real names of the real leaders in this instance are published to the public by janssen or on the docket they will almost certainly not work again within their chosen field let me ask you about something you point to in your brief but you haven't really mention i'm going to quiz your opponents on this and that is their their motivation yes the appropriate motivation because all of the complaint is out there all the allegations of the complainer out there only thing that is not in the public domain is two names correct and query why they are coming in a year after the case is over and asking that these two names be disclosed that's correct your honor and we have not been granted an answer to that question just to give the court a bit of procedural history from the moment  became involved in this case which was about a year after it was dismissed we have offered a chance and everything they want they served depositions pinas all my clients and we sat down and they were  d they requested full document production we gave it to them and they said no that's not enough we want your consent to unseal the original complaint and at least when you say i'm still written complaint it's really until your name unseal the names correct everybody else is out there and publish them on the docket their real names and they said no they have to come out there and i said well why why is it impossible for us to provide why can't we provide those names to you subject to a confidentiality were given the facts of this case and the procedure and the post it's in and we have not gotten a response and that leaves us they never answer that question they want to answer that question of they have not answered that question to us they've given us a very good response about it would be a little more difficult it could be hard to keep it under seal and we recognize that fact certainly but we don't believe that having to file a document under seal here and there represents the kind of substantial burden that would justify outing the leaders to the public what's the standard of us decision is it abuse of discretion it's abuse of discretion as to consideration of the question of let's assume well let me back up for a moment you know whether to apply make a lesser not would obviously  law but in application of whatever test is actually applied whether it's megas or something else it's certainly admissible yeah i mean it's a bit of a mix question but as to the question the standard we still haven't heard from you what you think this is certainly  what i would propose as a standard given that we're dealing with a dismissed case is that a whistleblower or a relator functionally the movement would be in a position to allege a reasonable basis to keep his identity private such as the fear of blacklisting which most of courts have recognized is essential of harm to warrant sealing and that the person seeking publication of the whistleblower his real name must show a legitimate and non punitive public interest in a factor issue that can only be served were discovered through the revelation you put of burden of proof on them when all the other standards have the burden of proof on the numbers no i think i think we would have to prove or allege as a preliminary matter that they have a reasonable fear of retaliation and that would be as to the identity of the ringleaders when everything else has been is public record when everything else is public record or has been provided to the person seeking unsealed so it's still a balancing of harms  proposing it does have to be but i would remove the specificity of many of the facts or because they simply don't apply in a case that's been discontinued thank you and this y you're proposing a test that should be generally applied with three later years no i'm proposing a test which should be to be applied to a case where a later has dismissed their case yes and yes i'm not i'm not proposing a general rule want is this out in the public they don't want to know they want the world to know and there's only one reason for that they have a punitive bad faith motive wanting to extract a pound of flesh  the case but we don't have the original complaint you have we don't have the original complaint up but you have all of the allegations you know exactly what it says other than the identity and you know the identity of these people right we do we do your honor the leaders have a task did under oath that those allegations preserve the furby them from the amended complaint that are now dropped into their declarations are based on their personal knowledge then there's no question that but we can ask them about a paragraph in think their position to be we'll go into a deposition with you tomorrow on record financial value and you can ask them all that stuff so that that doesn't wash what what is it you really want and why what we want to be able to do is to questions about why they got the e p a complaints about the allegations that were initially need what is the outing of their names have anything to do with any because they put their credibility central to the new jersey case they have said that these allegations are their personal belief and they their credibility is now central to this new jersey case because they're one of five witnesses  supported the leaders when they went to the government and when they filed their pennsylvania complaint they knew they stood to gain a great deal of money if they were successful so that that motivation of why they went to why i'm sorry to interrupt and i stop if you want he consented to what their motivations are to be witnesses voluntarily and publicly in new jersey so why how does the unsealing of two names give you a credibility bias motivation how does that do anything because we can ask them why they filed the complaint in philadelphia to begin with why they went to the government you could do that under a confidentiality  that's the whole of it you don't have anything other than that do you for our for our position on why providing us the original complaint is not enough and that the company under a confidentiality order and i would say that the confidentiality order in place in new jersey which were leaders have not availed themselves does not cover this situation it would have to be a separate agreement that we would reach and that's not necessary soon let's assume for the sake of discussion that smart you we understand where the burden of proof why yes we're trying to get it out one of the elements in the megastars that you say is correctly applied which is your good faith ok so that's what we're working with right now suppose code say they have the burden we know that the question is about your good faith if you've got everything you need under confidentiality agreement everything you need it was what do you have to lean on to say this is wrong other than it's just hard for us this confidentiality agreement that's the whole that right i would say it's just hard for us questions you want about that you can beat him over the head with that till the cows come home it's just that the rest the world doesn't have to know that you get to ask it and the fact finders in court get to know it the judge gets to know it all under confidentiality where we were taken that is the promise of our discussion so i guess this kind of a yes or no question and i think i think i've got the answer but i just want to make sure other than the fact that you say will that puts a burden on us to have to operate evidence because because of the conversation we've just had they say we've offered them everything and that's not good enough they don't want everything they want the world to know and there's only one reason for that the only inference possible from that is it's punitive desire desire to punish these people in the public so that they're unemployed born the industry again can you give us another inference that we can draw if it's in fact the case if you get everything you want what's the other inference to be  i think the other inference is to be john is that janssen has an absolute right to defend itself and jersey and that is to publicly try this case the allegations against janssen it's defense is that there is dancing have it just doesn't wash it doesn't pass the smell test of why this has to be added to the world and you you say you don't have the burden will you come in a year after the case is dismissed and say seal it it's a very different procedure a posture i understand your honor and i think that that timing actually speaks to the fact that this is a retaliation because we did not take steps to the new jersey and the docket announced their identities we took no steps to unseal the original complaint when we took steps to unseal the original complaint and i know there as a finding  court that the allegations in the original complaint except for the identity of the room leaders are the same i don't take issue with the judge's finding on that we have not had the advantage of seeing the original complaint however and it wasn't until they voluntarily and publicly picked up verbiage on the allegations in the amended complaint track them into a public declaration produced documents separate up positions testimony where they had taken no steps to protect their anonymity the jury asked them the questions in the deposition putting the complaint side by side with the declaration and say this you know your honor because they were instructed by counsel not to enter those questions because of the c r c the question of whether there was an instruction i can't recall whether i had that explicit in question but as questions are perched issues that honor but it is public because the amended complaint and the decorations are based on paragraphs they're not completely verbatim but they are going to be comparable advising judge in new jersey and get an order for them to answer those questions i'm sorry could you repeat that you know and if they if counsel instructions not to answer you go to the supervising judge in new jersey and ask for an order requiring them to answer yes your honor i have a or there's the c e o in place in pennsylvania that limits the ability for us to ask them questions about being the leaders in the e d p i don't know how that would be the case i think it's the notoriety and it being out there publicly that you're after and you're not going to be satisfied with an order from the supervising judge that that tells them i don't think they're going to have a leg to stand on if you say that the seal in pennsylvania is preventing them from from that and it's not a seal in any event it's an amended complaint filed with and with the name missing correct but the the entire docket before that and then the complaint including the government's request for extension of time means under seal to this year i think you've got to win in new jersey if you asked for order to compel at the end of the day you know you will be unable to ask those kinds of questions  only only knowing who they are right now with their identities being under seal were limited in what i can what we can ask if you are why if at all how if at all have your allegations that you filed in pennsylvania that you took to the government when you were seeking a bounty have changed from then to  voluntarily and publicly inserted yourself in a case in new jersey you say you can't ask them that you say counsel has instructed not to answer but why would not you go to the supervising judge in new jersey and force the answer and that that judge would have to say yes they have to answer that question but your honor that is certainly one route that you make and that is a route whereby there there notoriety is not known to the world is that a satisfactory route you well i don't know that would necessarily be true because if they answer in a deposition and we asked those questions at trial their identities will become known fact it's not really searchable the way their names can be search this this is problematic and i think we certainly are not contesting that we were a party we were never served at the complaint so we were not a party there was no active case so i think that there was cases that say that may be the proper way to do this although our position is that because this had been considered by the court because there was a route to challenge the decision by the court that that was the most efficient way to do it and to who used the same procedure to get out today show records when they were defending themselves in another case do you think they no matter what we do in this case they would be any collateral consequences and the new jersey  the on this decision on this what the appeal is coming i'm not sure that we believe where that would leave us mr nelson has said in the past that he would subject to some confidentiality order make his clients available to answer questions that's something i would have to talk further with him depending on the outcome of this or whether that offers well bob and i think it also means you know you could you could ask the pertinent questions and make to be absolutely clear it is our position that johnson and johnson can depose the individuals in this case again we're willing to do that right we understand that i guess what i'm most interested in is what your opponent emphasized repeatedly and i'm like you to answer again if you would since is an abuse of discretion standard here in the district court thoughtfully balance the harms and said look there's enough information out there that you use these words but you're effectively public people can figure this out and this is a public forum so that's you know and you're the ones who chose to file in your own name to begin with none of this would have happened if you had chosen to file in your own name to begin with so you made your bed you can lie in it where's the abuse of discretion the abuse of discretion is in permitting the ceiling of the original complaint in exchange for filing an amended complaint with the doe names on it at the court but there was that there was no stranger holding the it's not like you were making a deal with the district court you moved so i read the record not you personally yes but your your clients moved to because maybe they kind of occur record there's nothing in the record to support a reliance on on that yes and as something that could not be guaranteed trial court and it's it's something that could not be guaranteed but had the district court denied that motion they would have been in a position to decide to proceed with their case under their own real names and that's really kind of the crux of what are you she was here is that had that motion not been granted they may very well may have elected to proceed with their case after names come out and litigate the substantive case at this point they can't do either well they have decided to get into the new jersey action which is why i guess we're back here ok thank you very much mr