criminal case it's ok in the prosecution out of the criminal case the now call him the plaintiff because the criminal case conviction was thrown out because of improprieties on the part of the prosecution in that case so he then turns around and soothes your client who buys the prosecutor the mental health records actually are disclosed to the defense in that case making it clear that prosecutorial from mission and that case does those generally to the attorney general's office which is not prosecuting the case the district attorney is prosecuting the case and the district attorney says to the attorney general i have to comply with these discovery requests turn over everything you have and the claim is that your client conspired with as other people to withhold  now we're going to put aside her actual prosecution that her great spots in the prosecution of the drug dealer is and then whether you have any arguments other than your derivative argument because it's a little difficult to see how she was acting as a prosecutor and the prosecutorial function she was required to exercise who the girl knowledge and exercise discretion in determining what to provide to either the government to work for mr or not i thought that's true here exercising discretion today bring bearing on your lawyer skills making decisions you certainly don't have prosecutorial absolute immunity for what you're doing here today so understand your argument does help me with that there are the federal attorneys were not responding to any legal request for them to exercise discretion they simply have failed to do something which was to disclose it so they don't get the immunity the state actors by contrast were actually sizing sound discretion even though it was in a civil context and they do get immunity so i take your argument to be that the question here is was your client in responding to the question i think it's foster covering these of the how to respond to this subpoena doing affectively what foster was doing in responding to that subpoena such that she would get the same am but i take that point but it isn't just when she was pointing out to you a problem with that contention is that clearly she did not think the question of whether this material should be disclosed was important to her decision to prosecute the person she was prosecuting because she had disclosed that information to that person so that doesn't undercut that contention if we put that aside can you win soley on the contention argument that your client is entitled to absolute immunity even if we imagine she is just another person in office that foster consult about how to respond to the  and furthermore the attorney general's office takes the position that the filing and the superior curried that they are merely saree parties respond naming as circuits say it's all fine let's take that as a given that would suggest that there is any question does foster get absolute immunity in responding to the subpoena interest question to you i take it was even if there are circumstances in which a government attorney not acting as a criminal prosecutor say bring in f t c civil in force of action gets the same immunity as  criminal prosecutor is it the case that a government attorney simply responding to a subpoena as a rd party witness also gets that crumble that absolute immunity what authority do you have for that proposition because if you don't have any it would be context of a person acting as a criminal prosecutor in which the response to a subpoena by that government attorney gets the kind of absolute immunity that suggests civil concludes that she is a pretty obviously over she can be exercising those pretty duties is through the exercise of discretion is clearly not true because a police officer doesn't have a brady obligation but they can be sued and they don't get absolute immunity when they request from the court to a government attorney and the government attorney isn't actually sizing legal judgment in trying to decide how to respond to that subpoena but that's what foster was doing right so i guess the question is how are we supposed to deal with that situation quickly right it's different then being in litigation representing our party it's different debbie a criminal prosecutor on the other hand it's different then the federal prosecutors dealing with public proceedings responding to a subpoenas a public right the court can oversee if they don't follow their obligations the court can punish them hold them in contempt sanction them so it's not all in the dark ride on top of that every time  terry responds to a subpoena should they be at risk of a civil lawsuit for how they responded to it because you might think some of the same policy concerns apply the absolute immunity in these other civil context should apply in that context so what's the answer is one person in core but then you have the behind the scenes people who help that person who's in court and i understand better kept some fairly broad language suggesting those behind the scenes people who are assisting the person in court get the absolute so then why aren't people assisting him entitle to it as well what's the argument is it is that the plate the  because as a matter of fact the chronology doesn't mesh up with the defendant's case i don't think that there was a representation chronology rise i think what we have in the complaint based on the evidence that came to light from the actual prosecution i believe that's correct and i think what we're left with here is we just look at the legal landscape here this court's decision from two phase well that was the factual thing that was unclear which is why we concluded that we didn't have jurisdiction to review it because it wasn't clear whether the party was saying it depended on that fact or not so we're just in a different ball all against you if we only get down to the question of what we should decide about whether because merck was advising foster what is your position as to what the record shows with respect to whether the actions that are alleged she gauged and constitute providing legal advice to foster this i don't think she enjoys protection or writing not a not whether she does ok says no that said would you agree to a nat situation immunity would not apply to her i don't agree with the other so that's what puzzles me and cry if she's she's it's simply acting as a witness doing is responding to a request about a subpoena whether the actual function is being a witness or being a legal africa many different moments a natural sit down you go back to prague but just don't for a nd ok just isolating on with respect to judge as a question of why when you just say no and there's no ongoing prosecution i know you say there is but if there was hope why and that in some should we view you as acting as anything other than a fact right now if i change it slightly and i say what she was asked is there anything in the five hundred and then she makes a judgement as to what the file consists of and says well if you're asking be dependent on the fact that she was prosecuting the fraud case ok and because the information that's being asked for is the information that she holds in relation to that ongoing car parks occasion but so is your position that there is simply quarter of any kind he could ever be made to a prosecutor in an ongoing case even when it relates to a completely distinct matter that she has to answer truthfully with help a subject to potential liability because there is a rd circuit case in which there's a material witness question from a judge orders is there is material witness president right now the prosecutor it gives a false answer about it and they say there is liability in that circumstance because it's just a direct question so you seem to get a pretty extreme view that just because the evidence is within the pos of a criminal prosecutor during the prosecution any request that touches on that evidence no matter how far afield it is from the actual prosecution that she has she has absolute immunity and how she answers so if you refer to th