brought by petitioner c m s several of the discretionary factors set forth in the intel case weighed against granting this discovery i will speak in the time that i have today about to such factors first this discovery was overbroad and disproportionate to the needs of this case c m s sought seven years worth of wire transfers involving both lap and or any of twenty one alleged affiliates from sixteen banks and stated to clearly pretextual reasons for seeking this information first c m s claimed it needed this information to quantify its lost profits claim in the u k proceeding second its claim that it needed this discovery to test the financial disclosures that leopard already made in the u k proceeding where lap  already produced three years of financial statements the problem is this wire transfer information is practically useless for either of those purposes it is more apparent based on the timing of the seven hundred two application and the nature of the discovery sought we do assert that this was an abuse of discretion and we believe that the district court's error here was in granting this discovery wholesale based on a cursory relevance analysis but failing to analyze the relative value of this wire transfer agree with joe that there was a profit driven part of the company compensation so as we understand there were two pieces of the compensation one for services rendered and the other piece would be tied to a performance fee which would be related to the performance of lap the problem that we have had with the sky every is that the wire transfer information here can't help them piece together what lapse performance was you can't piece together what the profits of laps were frankly what the revenues of lapse of of lap was based on raw wire transfer data it's just not there it would be the equivalent of trying to put together a jigsaw puzzle with only fifty of a thousand pieces needed to put the picture together maybe don't get the pieces from other places i don't know that or maybe through other discovery means but you know i mean the district court thought that it was at least probative and one of the problems you have in this case is that there is six yes can in the proceedings in the united kingdom that you client was not completely forthcoming there so with respect to the second issue about the  financial disclosures there we do want to mention that here that the district court also committed a factual error because we believe the record before the district court was clear as to what the k court statements were concerning lapse financial disclosure so here what actually happened was lap after summary judgment was entered in the u k proceeding lapp sought a stay of the execution of that judgement pending its appeal of that court that lot did not have the ability to put up security for the judgment of what the u k court said was not well what the u k court said was that the information that had been provided by mister was not sufficiently detailed and didn't provide enough information concerning lapps financial status in order to justify gran stay without security pending pending the appeal after that mr submitted an affidavit sworn on penalty of perjury providing additional financial disclosures and attaching three years worth of lapse financial statements the u k court has never ever questioned the reliability or the veracity of those financial statements or any of the financial disclosures that were made in the  it might show some it might show some but frankly the words are so two points and this this goes back to i think the first point that judge raji made it's possible that they may obtain some information that could be later on relevant or could they they may later realize actually shows revenues or profits belonging to lap but without all of the information they won't know that the information by itself is meaningless on top of that this is not just one piece of some coordinated effort to obtain all the different kinds of financial data that c m s would need to be able to piece together ch you know profit on investment that would you know would be a complete picture but it would be an important bit of data but your honor i would i would submit another example of of what these wire transfers would probably show so the wire transfer perhaps might show a transfer from lap to and investment fund of ten million dollars it might also might show or a payment from blackstone told your client of fifty million dollars and the question would be well gee did they have an investment in black storm was it a profitable investment what is what is pay now fifty billion bucks your honor it's true that some of the information may reflect lefts profits but for the purposes that seem as claimed it needed this information for which was to perform a full forensic analysis of lapse profits and to come up with a bottom line number that they could use to calculate their own lost profits where no one's claiming this information is going to be  is yes maybe this is only fifty of the thousand puzzle pieces but c m s has made no effort to obtain the other puzzle pieces they have not asked the u k court for any of that discovery and as far as we're aware they have not asked any other court in any it reasonable for them to get this information which as you know would be fluid s and to tailor their further requests in light of what they see here as an update to the court i w mention it's already in the record that the trial in this case is set for april so the parties have been preparing for trial it's coming up in a couple of months they were required in the u k proceedings to disclose to each side was required to disclose the other side into the court all of the documents that it intended to use at trial to prove its claims we are at that stage in the u k proceedings right now c m s has disclosed none of the documents that it obtained from this court months ago with respect to these wire transfers i know you want to research some time for but let's hear from your  intel case of which i address the three that were contested by lap and its brief first the lower court correctly determined that the discovery is both relevant and proportional to c m s as claims for the damages and it is relevant to test the accuracy of information provided by lap to the english court help me out with what your relevancy argument is is i was looking at the transcript before the district court it appears that you determine the loss in value to your company but now it appears in your brief you're making a somewhat different argument that goes to your own profits under the contract i may be confused but why don't you tell me what the relevancy fees curial says your honour's at the oral arguments i did say that this would be a loss in value if i incorrectly spoke in that specific moment i corrected it later in the transcript and i read through the expert report provided by an expert on the damages these were estimated damages and the argument is that c m s has profits are twofold one there was an agreement where they would be provided performance fees based on lapse profits and that would be a percentage of the other aspect is that c several agreements with lap for various ventures c m s had an equity stake in these ventures and c m s after year was cut out by lap and so lap is trying to find now i mean excuse me c m s is trying to find out what it was cut out because it had a contract for five years and lap prematurely and that this contract and so that's the whole point of this is coverage and i think it's like you said i lap did most of its business in u s dollars even if lap assuming that they were for records i'm sorry have records that's our question why didn't control over all of the records that we're seeking there's allegations in england that lapse siphoned off funds in order to lower their their profits or to to be able to show a lower set of profits to picture we need to be able to see each want to get up against the bank records and so you're hiding something from us we did get certain records of that laughter it was a nuisance i know what they're doing and i'm not sure if they requested but i know that at some point i believe counsel said three years of banking statements were produced you're looking for nine years of wire transcript we're looking from april first two thousand and nine which is the date that c m s and entered into the agreement with don't know how they're going to be relevant if you if you could you argue you're going to bash them against lapsing you that's fine if you've got the statements but you've only got statements for three years my point is that i don't know if they have requested for that information in england and and the thing is i mean like you said it's a puzzle you piece together you request discovery the discovery is ongoing next week they have witness statements that what we're going to be requesting how this information is going to be used or translated into useful information and she also went into whether this would be a burden on the banks she asked whether we would be requiring a deposition and by the way i know none of the banks have have rejected since these are we're looking for u s dollar denominated transactions it seems that the the place where we can get the most reliable information is here in the us from the banks because u s dollar denominated transactions must pass through the u s and so that's the whole points for this discovery  the other factor under the intel that disputes is regarding whether the discovery is within the reach of the english court i think we covered it a little bit here but just to reiterate a few factors discover a factor that the district court consider on the seventeen eighty two applications but it is only considered when that person from whom discovery is sought is a participant in that proceeding here the banks are not participants lpez also not explained how it would be able to produce in england the records the banking records for its affiliates for the individuals that we believe receive  the other thing is that the district court considered lapse exhaustion argument but judge schofield accepted c m s as argument which was supported by the record that the revenues that were disclosed do not appear to be complete or accurate find it incredulous that lapse managing director for x amount of years does not know where the lapse assets are and lab actually submitted an affidavit to the english court stating that they don't have access to many of their banking information or financial information because of turmoil that's going on in libya right now there are two rival factions there are claiming control overlap and so the banks are refusing to to deal with lap so given the the law the banks are refusing to deal with lop or at least that's what their statement was in the english court although over here they're saying something else they're saying oh no we have custody in control of that information but  the the m d t essay which is the name of this agreement in clos three point four it states that we are going to enter into this relationship and i'm paraphrasing here we are going to enter into this relationship to do investment business what happened afterwards was that lap and sitter entered into various separate agreements relating to the different investments areas that c m s was going to help and the profits are outlined in those other investment agreements and this was actually gone this was actually outlined in the expert's report about those various  international litigation and the second is to encourage foreign countries to provide such assistance to our courts and the record below fully support c m s is a position that judge schofield to not overlook any facts that she did not abuse her discretion and that she properly applied the intel factors unless there are any other questions i think thank you your honor just a few quick points counsel was not able to confirm whether or not the discovery had been sought in the u k proceedings i can they have not sought any financial data from lab in the u k proceeding to support its lost profits claim period  with respect to this wire transfer data i want to reiterate one this information is necessarily incomplete they haven't sought anything else that they would need to complete the exercise three they're not even using what they obtained from this court in the u k for purposes of proving their merits on the claim at trial this clearly shows the pretext of the application and that the only purpose for which this discovery would be useful was not for quantifying collapse assets as they say but rather for identifying where let maintains assets for purposes of developing a judgment enforcement strategy that is the only purpose for which this wire transfer information could actually be useful with respect to counsel's point about our access to the banking records it is it is true that lapp has had some difficulty getting the banks to deal with it given the political turmoil in libya and competing claims to power that was set forth in mr kushner has affidavit however it might have been a different conversation with the banks in the presence of a u k court this disclosure here in the united states my understanding was you have i believe that the court is aware and has have you asked the court to indicate that it thinks it's relevant to case have you asked the judge in the u k to put on the record here that he thinks this would be irrelevant we have not your honor frankly we have actually asked opposing counsel if we could see the documents that were produced here that were purportedly be used against us saying you are doing to us that records of your bank transfers are irrelevant to the proceeding and they have to seek them here because they're there with the banks in the u s but if they were in the u k with the british judge think that this was relevant or irrelevant to the case there i don't believe that that argument has been made i think that the position of a blackout would be the most obvious way to you for your client to show us that this is of no value that the the u k judge would say look i don't think this is necessary this is just a delaying tactic or whatever you are asserting it is but you have in the not i guess i'm not sure if there's a procedural way to do this within the context of the u k proceedings and to i think it would be lapse position that it's c m s is burden to demonstrate