that's winter you can hear us all right it is clear to me ok yes we can right i understand that everyone is here accordingly we dispense with the calling of the calendar and we'll proceed to the first good morning may it please the court mark bannerman for koskinen and the government i'd like to start by briefly explaining how we arrived here and why the government believes that at a minimum   and for an evidentiary hearing is appropriate in this case the plaintiffs filed a bevin suit here and in their complaint in part asked for made a forty one criminal rule forty one g cla for a return asking for a return of records the government filed a motion to dismiss the forty one g claim for the return of the records as part of the motion as part of our motion we filed affidavit focusing on the fact that three hundred twenty boxes had already originals had already been returned to the plaintiffs and that the government only maintain two boxes of original documents well there are about a dozen boxes that are copies that the government made so when the government originally did the search warrant they arrived at a stipulation with the parties that they could copy the documents and return their originals and so the government copied the documents and has copies of those documents those documents were being used both in the wisconsin are two boxes of the originals and twelve boxes of cop possession or are they in escrow now the government has them has copies in its possession of twelve boxes and those are being used in the connecticut criminal case and bulls are the ones is that wisconsin of their original boxes that the government is still in possession of the scan versions so copy many of all the three hundred twenty boxes my understanding is that they went through the boxes and scanned boxes that they deemed appeared to be responsive and then there was privilege litigation over those boxes and that was continuing at he has issued this day our objection at this point is only to the documents that are being used in the connecticut criminal prosecution which is ongoing how many of how many of the those or copies are bulls my understanding is that there's about a dozen boxes of copies there aren't they weren't done by box they were done in separately you were we're talking about the copies that you say are relevant to the kinetic could criminal prosecution yes ok now as to vote yes there is in effect at the moment an order of it they should be released but that order has been stayed is that correct that is correct your honor now if the stay stays in effect until the connecticut prosecution is over yes then you have no problem because at that point you're not interested in keeping them is that correct and until  we were to find for instance that the moment we do not have twelve ninety one jurisdiction to hear of this appeal and that we have problems with twelve ninety two because it's hard to say that an injunction has actually been issued when the injunction when we order is without prejudice and there is a stay we could be in a situation where  may say so long as his stay stays in effect we don't have jurisdiction if for any reason judge underhill were to remove this  because estate is not a state pending our decision or anything else it's a state if for any reason he were to remove that jury that state before the connecticut case criminal case is fin to what is a messy situation that is ok for everybody it's unusual for me to act as if i were a district judge but you know i think that there may be hero way of solving it that gets us out of the mess is ok with you that is ok with them and that doesn't get us into a question between shot in and under a veil yes i mean i believe this court made it clear that we could immediately appeal the lifting of the stay then then the government would feel that is a proper disposition of the case just one one final question you had said that you're only the government's only objection is to returning the documents that are relevant to the criminal case are there other documents among the two boxes of the original twelve boxes of copies the scans that don't fall into that category that is relevant to the criminal i believe there are still some copies in wisconsin back  not relevant to the connecticut criminal case because we had all the copies of all the documents that were subject to this privilege claim that we're going through and those were never divided into what returning are not relevant to the criminal case in connecticut and i would also in a practical way now dispute i believe that the connecticut u s attorney's office believes that there could be some custody issues  and and also a sort of chain i'm sorry chain of custody issues and returning those because they got their copies from those copies and so they were concerned of chain of custody issues and returning those again the plaintiffs have the those cases wind up between three judges and is there any way to get them could some of those not consolidate been heard by the same but the judge who has the while a district court in a criminal case is hearing a claim relating to the same property and i think this court could hold as it did in that case that this district court should abstain that it could vacate the order and that all further forty one g proceeding should proceed before the district court in the criminal case would again we have the government right now is facing inconsistent orders we have a civil case where we are ordered to return documents in a criminal case where the judge said we did not have to return those documents and tonight suppression at this same document that at the moment they are not inconsistent because  morning your honor is jeff nichols for the plaintiff daniel carpenter i have with me attorney john einhorn for the plaintiff gristmill capital and i have seated a couple minutes to him of my time i think it's important to focus on how we got here and it wasn't judge underhill reaching out in a moment that he should have abstained were here because the motion to dismiss that the government just referenced was also titled motion for summary judgment and the government asked judge underhill to decide the forty one g motion and it submitted two a davits in support of that there's no question that at the time underhill first got this it was a government that said you have power to decide who you to is a little bit peculiar for the government now as if all were terribly shocked he grabbed because they asked him to grab the opposite direction but i'm not so interested in how we got here i'm interested in what we can do now this fall if you will miss and your honor to judge chin's point i believe that well there's new information that i personally am just hearing in this case for the first time which is that there are twelve boxes that allegedly are relevant to the department of labor criminal prosecution and my understanding is that although many of the other originals have finally been fully returned to the parties from whom they were taken that there still are all the copies i think all of the original copies and that's not just copies of documents i believe that's also mirrors of servers and computers that are still sitting in wisconsin let me ask you what is the government what is it you are trying to get  mr carpenter is trying to get the return of all documents that aren't plausibly related to the department of labor prosecution pending in the district of connecticut right now and that includes copies we are trying to get back the copies so long as they are not related to the criminal prosecution of the government has said in its release that there are some things that it does not know whether they are related to  criminal prosecution because there is so much stuff that they haven't yet gone through all and your honor mentioned previously feeling as if you're in the capacity of a district court judge today i believe these are questions the judge underhill ought to be able to pass on i believe he invited the government to to move again for reconsideration so that with the change potential change in facts and potential change in law with the new tonights decision that he could assess the situation as it stands i think that's what should happen here you you agree that you're not entitle to the return of originals or copies of documents wrong to the criminal case i think that's correct your honor i think that the and they saying that those are the only ones th interested in keeping putting a sign custody issues can't you work something out here well i'd like to think so your honor again i think this is probably a trial court level type of conversation because we're not one hundred percent clear on what the state of the facts is as to where the documents are and what documents are where and i think that that is going to require some unraveling representing the government's or or touch winter's suggestion that it would be better one and so he did and you asked judge shot me to give him back and he said no because that was what was before him so perfectly clear up and the question is does it make sense and i don't believe that mr carpenter what object judge underhill and judge shot near both capable jurists and i don't think that it makes a difference which district court judges ruling on these issues  basically each of you always say that you're comfortable with the same thing you are willing to let them keep anything that is relevant to the group in the case until the criminal case is over and the government says that that's all they want and they also say that they cannot tell you about what is in bull's boxes what is relevant because we haven't had a chance to go through with so servers for seven years for more than seven years now and there has already been a prior occasion in this case in which they obtained a search warrant to receive some of the documents i bought and reminded of some of the  i don't know if i could handicap your honor i know that there are substantial post trial motions that have been filed and how long it might take judge shot need to work through those i think at the outside it could be six months to a year and meanwhile mr carpenter is sitting there concerned about the threat of the government going back into documents that's been holding for more than seven years it just seems very obvious to me that the government has a the vast majority of documents there are three hundred twenty two total boxes that says that twelve of them are relevant here that leaves very few boxes three hundred ten or scuse me that leaves many of the boxes three hundred ten that it could return now and if there are issues outside that they are representing about chain of custody etc it seems to me those things could be worked out a judge shot and his decision for that and it's really not clear there were other issues that were in play including mr carpenter standing to speak as to all of the boxes and the judge shot and he seemed to be focused especially on whether the search warrants in two thousand and ten and two thousand and eleven were facially invalid and making more of a fourth amendment decision than a forty one g decision and so i can't find it there your honor i can't find a yes or no answer to whether good morning your honour's john horn from new haven excuse me i represent gristmill capital which is the other plaintiffs in this case mr nichols has done all the heavy lifting so the only thing i really wanted to would to add is two things first of all  in the government's rule twenty eight letter of i guess about two days ago the government two days go the government noted the chris milk capital of the complaint was dismissed as against c but chris milk capital has since refiled essentially had a procedure suggested by judge underhill and then both plaintiffs have also at this point done a compounded complaint for both of us so  capital is back still in play and they are the only other thing i just wanted to know does is the fly in the ointment your honour's with the settlement that we've heard a resolution we've been discussing which is that the return of the of the copies of the three hundred ten documents and i think it's the return of those copies not just the fact that that the originals have been returned and so we the government seems to have some concern over doing that well i think the concern is over the chain of custody but again i would think that the parties could work that out and are into some song kind of stipulation that would preserve the chain of custody i i would agree with that yes thank you think we've covered most of the areas here i would say that judge charge the carpenter as a defendant in the criminal case asked for the return of all the property all the boxes and that was denied by judge shot me so i don't think that that that the criminal orders ambiguous as to whether the government is allowed to keep those documents in the criminal you know as to judge shockley's order he also denied suppression it permanently oh well he denied it pending the conclusion of the criminal case you can always refile after the criminal case and we're not denying that that after the criminal case is done that that plaintiffs have a right to sole possession of everything of their records including the use yes your honor let's be clear on everything can go back including the ones for the criminal language into the supreme court when it's talking about in in essence part of a criminal case that are rule forty one g would not be appealable i think they're focusing on well actually a case like this where there is a civil action filed by a party that's also a criminal defendant and he's denied the return of property i think it's much different in this case where the order is for the government to return property because that causes or operable harm once the property is returned it can be destroyed therefore i believe that there is that this is a final order and that a rule forty one g can appealed by the government to order requiring it to return property and judge learned hand which i see i'm right over here ruled in a case in this court that that the return of property or return of property was appealable by the once all copies are returned they can be destroyed in the government has no recourse thank you thank you we'll reserve decision