morning morning may please the court i'm michael hayden representing appellant holland america bob harms and i'd like to reserve four minutes for rebuttal this is a case where plaintiff middlebrook seeks to enforce a two million dollar plus foreign judgment under washington's uniform foreign judgment act the central issue is whether the specific dutch perceiving that produced the this judgement met the requirements of due process or fundamental fairness the underlying dispute is a simple commercial collection case both supplier middlebrook agreed to sell containers of flour bulbs to washington grower holland america on an actual cost plus the commission basis the arrangement unfolded over approximately six years from ninety four to two thousand and then the dispute arose over holland america's alleged failure to pay invoices and middlebrooks alleged over charges on those invoices my understanding is putting all of in perspective that your client does not dispute that it did not pay the plaintiff all it does views is it lodges a counter claim over the over billings but it does not dispute it did not pay these invoice it did not pay the invoices in full and it was both defending the collection action on the grounds of fraudulent over charges and counter claim mean for i understand the counter claim and i understand what i understood from the record that your client doesn't dispute that it has not played the plaintiff in fact it instead is i don't need to pay because you've overbuilt correct that's what i understood that's correct your honor well the fact that someone in that particular situation if we're looking at the hall and court the fact that you do not dispute you didn't pay it is all a dispute over whether there was over billing right fundamentally yes because if they didn't over bill you should have paid and you did but if you did if they did over bail and there may not be a reason for you to pay correct that's correct and as i understand the evidence what happened here was that you got some discovery but not all you wanted isn't that also correct no that's not correct what we got were summaries aren't we got post hoc summaries of the costs that middlebrook had incurred you did make it you want to call it something but frankly it seems to me that you got some information we got some information but if you can call it what you want i just call that discovery because that's what it is you were just you were asked to discover certain information you got some information as a result of those requests for discovery but not all you wanted well we got it in any commercial case like this one the first thing i as a commercial litigator was for my question i understand what some information was given but it wasn't the underlying cost records i understand so you're suggesting i got some information but it wasn't what i wanted that's all you're saying right well we're saying that the level of nondisclosure in terms i mean twice the district court said in holland you've got to provide the underlying cost records and then inexplicably in a third interim order a few years down the line  this lengthy case they said the cost summary you were provided cost summaries and we don't think it that your objections to the invoices were sufficiently specific the problem is that our client wasn't in a position to really know how to object more specifically because it didn't get the number one thing that any request for production in a case here would be your first request provide all the cost records that support the fact that you charged us as  as i understand it the holland america should quote specify the invoices to which is objective concretely indicating which amounts middlebrook invoice unjustifiably to home farms and why  other words if you have a list say we should not pay this when the nine hundred ninety four because it was above the market rate you want to problem doesn't did you do that objections were made but they were not able to get at the underlying cost record because they weren't supposed to charge a market raise the risk goods a charge the objections pacifically to each of the invoices and the courts and explain why i object to the invoice because it charges me too much because the market price on bulbs was this and they charge this the objection is that that specific os we believe that they were over what actually did you tell the dutch court yes they did their over charges and because here is what other people were selling both for and they were charging us ten i know that people were selling for fun did you do that yes and i'll that can't be squared with the evidence that there was a settlement and the court also though did say with respect to some of your discovery request and said there were two plans and had to be denied correct not just a cost i don't believe that's correct your honor well here let me turn to what i think is a threshold issue that this course faces and that is whether or not the district judge should have denied our request while the summary judgment motion was pending we  and the actual except that the washington legislature in zero five passed the updated uniform for a money judgment act and it added a opportunity to challenge a foreign judgment if the won had we had the discovery but isn't the issue whether you receive due process in holland not whether or not you win on the merits i understand why that is so crucial to you but isn't the issue that this court has not not whether you win on the merits but whether or not you were afforded due process in holland is that the issue that we hear issue is was there fundamental fairness due process in the dutch proceeding and you and we have the benefit your honor in this case of a sample of the record the cost records for twenty six containers which is about ten percent of the container shipped over the six years a sample was produced to an accountant client and it couldn't come into th proceeding because it occurred during the mediation scene frederick i understand your view is that if you receive a discovery it would demonstrate that you were right your legal theory was correct and that you should have proof should have prevailed in holland had you been given the discovery that you think you were entitled to but is it fair to say though that the issue this court has is looking at the proceeding in holland and determining whether there was a due process violation is that the issue that's before this penalty it's a it's a due process issue but this is similar to the maersk case which we cite in our reply brief that's a situation where a kuwaiti judgment was entered against an american defendant and ultimately they there was no discovery there were no there was no witness testimony and the court this was on not under the foreign judgment act but on a comedy basis the fort's the court ultimately ruled the district court ruled that we're not going to defer to this foreign judgment because the defendant was in and this is a situation where it was again involving containers the kuwaiti plaintiff was claiming that there was a huge loss against the shipping line because the containers had computer parts or computer hard drives in fact the defense was saying no they had low value auto parts you're trying to defraud us they weren't provided the opportunity to make their defense we are making the same point that if you don't get the cost records you can't make this defense in a value waiting your claim what standard of due process is a private use this quote up an international standard of due process is that u s standard of due process what's the standard that the court has to apply in evaluating whether you receive due process in this specific proceeding as well and in the this is that that issue is a case a matter of first impression under this statute however in the arbitration before an arbitration cases that we cite in our briefs which are are referred it's referred to as the new york convention it's clear that the courts throughout the u s are applying a u s standards of due process and doesn't have to be exact for example oregon versus washington in washington state there are in iraq authorities and extensive expert disclosure and discovery in my state of oregon no iraq authorities no expert disclosure until trial and no expert discovery that difference is not a matter of the dian a denial of due process but the overall us concept of what's necessary to meet a test of fundamental fairness and here if you are deprived the opportunity to get at the evidence the cost records that support that enable you to present your defense that's the kind of failure that meets the test the other situation we have here is a situation where the appellate court said you should have gotten the records but we are looking at this cold record and nonetheless deciding that there was a settlement agreement and if you look closely at the record your honor it's clear that the you can't square the appellate court's conclusion that there was a settlement agreement with the record i mean the district court said the witnesses were inconsistent he cited specifics and here in holland you have a situation where the witnesses actually testify and then the court goes through a process of writing it up letting them review it and then they sign it and we have cited in the record how all of america's witnesses testified completely inconsistently with the fact that there was a settlement yet the  said that those people who were witnesses who were heard in cross examination do not lead to a different conclusion on the settlement and that's an international and it's an internationally recognized failure for an appell court to without the benefit of hearing the witnesses review anything the record that suggests that the court of appeals in holland did not have the authority at their discretion to change in essence to change its own factual findings as to what happened b process because the scope of discovery was limited and i couldn't find one in fact weatherford versus bursey which is the united states supreme court case there is no general constitutional right to discovery and the due process clause has little to say regarding the amount of discovery which the parties must be afforded we followed that in one of our cases it is not a sided case but it's one of those we buried because we said it was an unpublished i mean that's the bottom line of your argument i wanted more discovery than i got and i didn't get it and it's fundamental and therefore i ought to get it but weatherford very straight if you got some and you didn't get all you wanted there's nothing there w i suggest that the merest case that the washington cases that we cite the talk about it washington cases are not important to me when i got a supreme court case i'll reserve the balance of my time when  questioned your would you position the whole proceedings prior to nine hundred thirty eight violated due process because there was a new discovery before nine hundred thirty no but the situation there in the us anyway unable to you to i mean the trials were much more extensive there was there were a german sent trials if there end after eleven decisions at least eleven decisions by five different courts in two countries over sixteen years has had way more process than it's due and the process that it was granted was not from a kangaroo court in north korea it wasn't from a tribal court and some remote corner of afghanistan it came from the courts that oversaw one of the great commercial hubs of western civilization amsterdam the courts here issued repeated well reasoned explanations for their decisions and they did so in a manner that is consistent with fundamental due process ha b f wants to relieve negate all of those decisions they want to relive again the outcome they want to relive a gate the district courts judge in the court of appeals judges calls with respect to discovery issues and that's just not appropriate judge brian the district court judge in this case did exactly what he was supposed to do and what the required with the statute required him to do it is time for each to pay its bill in this case i think it's very important to focus on the process and not the outcome in other words although we believe the outcome here was right and just and correct it's the process that's at issue not not the outcome and i should point this out every american  least that we've been able to find that has examined the procedures of the dutch courts have found them to be compliant with due process the two that we cited then bigelow d l over suspect meyer both make that point we have not been able to define  nor has he apparently been able to find any cases in which the procedures of the dutch court have been found not to comport with due process and when you would look at the process that went on in this case you can see why he in this case there was a notice of the claims the parties were represented by counsel the claims were presented testimony was taken documentary evidence was presented discovery was a bailable and provided and it was done so in a thoughtful manner it was done so in a well reasoned manner they didn't get all the discovery that they wanted but they did get extensive discovery into the banking records and as counsel has admitted  it wasn't every time that they did discovery there were some issues with respect to the exchanges between the accounts and the only difference of that court of appeals made was to reduce it by i think it was about forty thousand guilders as i recall so i'm sorry losing your rose pardon me i think that was the reduction was about forty thousand guilders the courts also here in holland exhibited extreme amount of seems to me that every time your client responded to discovery in the chord you responded to discovery much like some corporations to hear in this country you pointed t warehouse full of records go find it well iraq then and then when they wanted to get to the specifics as to what was going to prove their claim then the court in the allow them to get to it there were two separate categories two broad categories of discovery that b f sought in this case one had to do with the banking records and that really had to do with their claim that there was that they had essentially overpaid because of timing on the exchange rate and various other factors relating to the change of the accounts and they were provided all the banking records so i don't think there was any issue about the the banking records the records very clear about that they got everything they asked for but when it came to the cost issue the court did in holland what many courts do what most courts do in the united states they balanced whether or not that there was a basis for the claim and the and the alleged need for discovery with the burden on the producing party an analogy i'm not saying it's an exact analogy but it's very similar to a situation where a plaintiff brings a an allegation and it ball twamley motion is made or if it's an fraud a ninety defenses raise you haven't been specific enough in your complaint and no discovery goes forward until specificity as is provided in this case no specificity was ever provided it was a fishing expedition clear and simple and you can tell from the said there was they weren't able to say why they thought that they had overpaid they were unable to specify any invoice that they had overpaid maybe you can help move this divided through the contract correctly  the american but they are so they would put the seller the cost the dutch seller had for buying the boat plus a commission correct it was the costs associated with all of with the bulbs right so supplying them and processing them yes so had there been no discovery couldn't the american buyer have taken the invoices he had compare them to the market rate and show that he was overcharged i think there probably were a number of ways that you can kind of get this from the through the courts the dutch courts opinions there were a number of ways that a party who was familiar with the bulb industry as a j b s obviously was could have said there's something fishy about about this invoice and here's why but they never did that there's nothing in the record about that and i think that the in addition to the processes that went on the district court obviously the processes that went on in the court of appeals are relevant to you had three separate decisions by the court of appeals to interim and one final decision by the court of appeals all of which review all of this evidence in the district court's findings and very carefully explain why they are in most cases affirmed or in really in one case changed because of the court's view about settlement and court of appeals the supreme court and the north holly court you have four dutch courts looking at these allegations all coming to one conclusion if you compare this to the maersk case which counsel does you compare it to the dole case which is the other case that cited by the appellant here you can see that this case bears absolutely no resemblance to those cases in the maersk case that in kuwait there were  not only was there no discovery there was no testimony and there was no drudge they had a legal expert who apparently had a pined on those issues so you had this confluence of factors that led to a denial of due process in a case in the nicaragua case involving dole you had a discriminatory statute a statute that discriminated against foreign defendants which in which there was no jurisdiction where the court didn't follow their own rules and where the court in said that the statute provided an era bubble presumption of causation and in that case the court said there is no due process because countries in western civilization don't generally require defendants to pay for things they didn't do that's not the remotely the situation that we have in this case so if you compare this to the cases in which no due process has been found they are completely different i think the court should consider the consequences of granting the relief that the appellant is seeking here if the court were to grant that relief every losing defendant in a foreign  commercial case or proceeding will be able to come into the united states and seek to avoid the enforcement of that judgment claiming that it didn't get enough discovery or it disagrees with the decision that was made at the district court level or the court of appeals in that points out in that case that's exactly the that is exactly contrary to the purpose of this uniform stature this uniform statute was inactive to ensure that foreign governments know that they can that the international due process which standard it is it doesn't make a difference in this case i think the best exposition of international due process is set forth in the in judge posner's decision in the lloyd case for his opinion in the case and he describes it at essentially as fundamental fairness a process which is which western civilization or most of all as asians used to go to get the bill he will likely to lead to a just outcomes  and that's it and it doesn't i think there's a distinction made in the briefing about whether because this is a an amendment to the foreign judgments act that relates to specific proceedings versus versus systemic processes that that's a that's an important distinction that should be paid attention to in this case and i would suggest that it doesn't make any difference when it comes to the description of what those fundamental processes are and judge posner in the in the lawyers decision lays them out that we would subsists submit to the court is the standard that should be applied here but if the court were to use an american standard of due process that too was complied with in this case  as judge smith has pointed out there is there isn't a constitutional due process right to discovery in the united states there never has been and in this case in any event the discovery process that occurred here is very similar to the judgments that are made by district courts in magistrates every day they consider whether the claims have been specified or provided with enough specificity and they weigh the burden on the producing party versus the benefit to the to the requesting party would you suggest that the americans standard is more strict than the international i think both i think that the american standard when it comes down to it when it's reduced to its essence is actually quite similar to the international standard which is fundamental fairness and i think it's a  what americans have i think in our system is a is a standard that specifies in certain situations fundamental fairness more explicitly than in other in other situations but i would say that because due process even under the u s system  flexible it is a it is a standard that is very similar to the international standard that's described by judge posner if i'm writing an opinion here and i suggest that if they meet the americans standard they've met the international standard i think that i think that is right touch just briefly on the the one decision the council referred to where the court of appeals centrally reverses the district court judge district court on the issue of the settlement agreement there is no fundamental concept of american due process that says that the factual findings of a trial court or even a jury are inviolate america and even under american due process standards appellate courts are allowed to reverse district court findings on the basis of clear e that's the standard in the u s it's not held to be a constitutional standard it's not necessarily a due process standard but it shows that even under the american system findings of fact by a district court or even by a jury are not inviolate and may be changed on an appeal here what the court of the dutch court of appeals said very clearly is that there had been no the what the district court missed here was one hundred thousand dollars payment hundred thousand guilder payment to b f by mid brook as to which there was no other explanation other than settlement it had been ignored by the by the lower court it was perfectly consistent with the testimony of the two witnesses on behalf of men broke although there was a court also took the district court to task for saying that simply because two witnesses were attached or had some relationship to mid brook that their country that's great right and i should say just in closing there's been no allegation here that that action by the court of appeals violated any rule of the dutch courts or any any indication  and it's in the second second interim order of the district court in holland that you are one five five five six in there the district court lists summarize a some thirteen different objections and these i think help illustrate the problem that we've got they were provided my client was provided with summaries of the invoices not the actual underlying costs and for example they charged a uniform two point five percent percentage commission that they allegedly were charged by the brokers from whom they sourced bolts of harm america's objection was that from their knowledge of the market this would have varied between zero and two point five percent yet they charged if they had knowledge of the market why couldn't they put in evidence that the horses were inflated because the bulbs were sold on the market and a different rate will because in this instance they say it very that so variable zero to two point five percent commission they also said that some of the bulbs were cultivated in other countries like belgium france and new zealand yet charged a ten percent dutch harvest trade tax on through all the examples but this shows that they were very specific in their objections and the market issued judge be a dozen wouldn't have solved the problem because the market can't substitute for what their actual costs were undisputed that this was supposed to be actual costs one for one actual cost plus a commission that mid book charged and my client was never able to get that in conclusion the one of the good additional point i'd like to make is that if you look at this new addition to the uniform foreign judgment recognition act it goes beyond looking at the specific system as a whole and the if you look at the commentary to that uniform act there is no question that you are supposed to delve into what happened in the specific proceeding this is a due process fundamental fairness in the specific proceeding test that's inherently factual the judge brian should not have ruled without the benefit of the discovery that we asked where which is just trying to get the information that completely deprived holland america from being able to present its defense and we cite multiple cases that that violates fundamental fairness the bottom line is that american companies in concert connection with this uniform act are entitled with this addition in zero five for all the states they've adopted it's nearly thirty i think to a reasonably robust review of what happened in this specific proceeding and we actually have a sample that we were able to put into our record they couldn't do it in the in the netherlands of some twenty six containers showing more than twenty five percent over charges when you compare the actual costs which cmon fl log who is the accountant who filed the declaration and that's all in the record was able to testify to that should not have been ignored in connection with the ruling that that