or good morning your honor i'm michael shine and i represent rick and nancy tarn it's or in this matter before the court is in order dismissing my client's claims based on their failure to comply with an order compelling them to produce all their financial records from two thousand and three to the present the order is reversible error primarily because the district court did not apply special california discovery rules which arise from the right to financial privacy under article one section one of the california why did come why we shall for a new law apply at all to this is coming from washington as opposed to washington law well we did brief the specific contacts washington first off if you consider that the district court applies state conflicts of interest rule the district court originally there were actions brought in california and then in washington washington the california action was dismissed and then it was brought in washington state court and removed so both parties claims ended up in washington but we did brief in our in our brief the contacts analysis the washin court would go through that the loans and the investments were solicited in california they're drawn on california banks they were sent from california these are california residents with respect to the elder abuse claim this is a california resident that we're talking about who is the elder in question so the transactions have a have a weight of operative fact in assuming for purposes of argument as a district court did that california law applied you know is your argument that under california law you need not produce any financial records at all of course not and we have produced financ isn't that what it is not the argument you made to the district court you didn't say we'd like a protective order you didn't say judge should impose a lesser sanction what you said is if you think we've got to produce th stuff judge dismissed the case so we can go up and argue it to these three judges you're now in front of judge sure sounds to me your position is it is i'm not producing anything right and and i understand the court's perception on that but if you look carefully at our brief you'll see that we have a section devoted to detailing what we had already produced and we didn't reduce accused was not in response to the briefing about the motion to compel the argument was made that this is overbroad but then the order came along which was overbroad in a mandatory production of documents we'd already  order is only a what or anything else the eyes order the eyes only order was a question raised by judge martina's a later on in the proceedings i believe in connection with a stay on an emergency appeal here and the reason quite frankly that we were not comfortable with that was that there was this discovery memo as part of mediation or settlement memo that had been taken by our adversaries and put before the court as the basis to get this overbroad order compelling and that that interrupted the normal trust that might be between counsel so we felt that giving counsel and eyes only view of all these financial records would only enable counsel to bring more kinds of claims as part of if you will a family event how would this so that wouldn't wouldn't solve the problem that i have  for the documents would rest with real don't think california cases suggest the contrary california cases seem to suggest that one asserted in went into went into litigation proceeding in discovery yes don't seem to say look there's a there's there are two burdens here once of the discovery burden and i tend to agree with judge bers on that some of these requests were overbroad but that's not what we're here about or once a judge orders discovery or once some of the other side seeks discovery don't you have the burden of demonstrating that what's sought for us is constitutionally protected well oh yes to show that it's constitutionally protected but that is covered by the fact that it's financial that's my problem rather your argument is that anything that relates to finances is automatically protected by the california constitution and thereby not subject to production and i don't think the california courts have read that privacy provision and even assuming it applies that broadly what they have said is it may well be that there that some of this information is private and if so the parties have the burden and the court can then fashion an order to keep it private your position seems to be no it's a troublesome part of this case your position seems to be nope i'm relying on california law that's the end of it dismiss the case judge and let us go up in good commitment to appeals it's an absolute protection and i have problems with that broad position but with the notion that the that the discovery question overbroad so respond to that yeah yeah well i i i'm a little surprised  honor say that because i think we briefed it very thoroughly that a number of california cases that show that bird now there was a recent case that was just submitted yesterday that that attempts to cut that back but that had nothing to do with financial disclosure we think the california rule is that when there is financial disclosure you make the prime of faster showing that they're after financial documents and then the constitutional right of privacy kicks in and the burden shifts to the other side the i mean i say one more thing your hon and that is that that's not the primary issue before this court the issue is which law should apply and then it should go back to the district court and let the district judge tell us what california law is well but here's here's my here's my problem with what you said and so i need you to respond to it yes to me it's apparent at least why some financial information is being sought you're saying which we produced all the two thousand and seven documents in these e mails staffers i'm talking about the requests for production ok so when they say you say it we've been fighting about with these are loans or investments and so they want to look at the financial records to see how they were characterized they send you a request for production which may be overbroad but which are at least aimed in part at finding that out you didn't respond by saying ok these requests are fine we already gave you the information you responded by saying we have a california privilege not to produce that information we responded both ways here i know but and then we got the order but we're  only here about the second response and it seems to me that they did at on the face of their request at least with respect to some of the information they plainly established its relevance they wanted to find out how these were characterized in your own client records but that's not what they asked for your honor i mean some of the stuff they've got in their brief if those had been the actual requests it would have been no problem in fact we've already given them virtually all that information and they've depose in the financial statements and all that you could always go back to the district judge and say judge we've already given him the information they requested you want to lift the sanction that's not what we're here about why we're here about whether or not your refusal based on california law is legally correct well it's not his disagree oh absolutely we're here because the judge applied the wrong law and also the court judge even in not applying state law didn't even apply the federal rule properly applied the you know reasonably susceptible of leading to the discovery of admissible evidence standards of the court feels that perhaps federal rule should have applied then it's still an inappropriate judge applied washington law not california law no it's our position the judge applied federal law incorrectly instead of california law correctly what happened here with her part of the federal law is that the rule changes sensually the day that the yielded that changes the that was in the commentary that language that language has never been ever since two thousand the standard for evaluating a discovery request the reasonably susceptible test has been criticized by the commentators to the or if you have any questions i'd be glad to answer them if not i want to just briefly sum up it is impossible to overstate the importance of the erie decision and this is a quote from right miller it does not announce a technical doctrine  federal court procedure jurisdiction rather goes to the heart of the relationship between the federal government in the states the california right to privacy is no mere procedural rule of discovery as the judge said it was it is intimately bound up with the core substance of state law and must be applied under this court's feldmann decision and eerie failure to do so was reversible error so unless your honour's have any questions i thank you very much thank you so much aside the choice of law question for now which you didn't address that's probably wrong respectfully i would disagree with the second point your honor this is not a privilege issue of the federal rule says that except for privilege concepts and it's my view that this california has a constitutional right to privacy and that is a right but it's different than a privilege the federal rules specifically say that the case actually rejecting that position and there are a bunch that except if you have any that of which well i mean i guess i read the cases your honor and i didn't see any of the cases even feldman or any of the cases that were were referenced describing it a privilege they described well a number of reasons you're on and i can address it at the constitutional level or i can address it at the practical level there were numerous motions for reconsideration and stays and so he was told at the district court level that you've applied the wrong rule you haven't applied california privacy rights yeah applied the wrong federal judge mark you know this was told all those things and asked to reconsider and he looked at it again any reconsidered and he said no and i didn't i didn't make a wrong ruling under any rule under the new federal rule under applying california law i would make exactly the same ruling and those rulings that were that occurred sought a stay if they first move for reconsideration before judge martinez then they sought a stay from mark judge martinez then they sought a stay from the ninth circuit right and then circuit dismissed the mandamus that so i want to go back to the discovery requests if we weren't here in this context where somebody in effect said please dismiss the case or get up on appeal and we were only looking at the discovery requests i'm not the district judge and i haven't gone through the case in the way the district judge might they look incredibly broad to me they seek all sorts of information and i'm having a hard time figuring out at least at the edges why it's relevant to this order which i think may have been overbroad the other side refuses to comply with it and then we're up here looking at sanctions the sanction of dismissal can we go back and look at whether or not the original ruling about production was correct i don't think you can look here's the question i think your honor if you let me just say this i don't think the question for this court is whether there was any document covered by judge martinez as order that should not have been covered that the or whether the order was overly broad i think the question for this court is whether there were documents covered by judge martinez his order that were within his discretion to order produced given whatever standard applies and whether this claimant didn't produce those dr so your position is even if there were there was error some error in the order because the judge ordered production of some stuff that's clearly relevant and because they absolutely refused to produce that stuff is sanctions are appropriate absolutely absolutely on or otherwise the otherwise just trial courts couldn't function in other words the judge orders them to produce and i think your honor answered questions initially of opposing counsel what they should have done is for example there's no dispute that financial statements were directly relevant characterizing these transaction t years it was a time from the time the company was formed it was the subject of the dispute to the president to the president when the trial we were in the trial court and he said that was like two thousand and fifteen right so was it was twelve years ok the point still some motion or some argument in the court below that the requests for were over broad did opposing counsel was there any sort of dialogue about what they might be willing to produce or what years was there any sort of effort on their part to even partially comply not that the court was involved in in other words before you move to compel discovery under rebel rules you have meet and conversion you talk with counsel there were those kind of discussions but what my point was is that what your honour's addressing they could have said i think the time period is too long i think there are too many documents but we will produce our financial statements for three years and they didn't say any of that to the court so they never they just stood firm and they said we will not produce a single document you have ordered us to produce we will live or die by absolute non compliance did they did they say to the district court judge we've already produced some of this stuff voluntarily no because they had and that and that is the record is clear on this the only thing they had produced  records so for example they said they invested one hundred thousand dollars they produced the bank statement and the and the check where they made the alleged investment they said they made a loan so they produced the check and the banks that completely different from the order that says produce your financial statements so we can see how you are characterizing these transactions you now call investments in which these documents were relevant one is they were alleging transactions to be of a different character than they actually were so that's one trend right the other way is that mrs tarnas or was alleging that because her children only gave her a two million dollar home and then and then didn't give her another hundred thousand dollars she was suffering anxiety because of inadequate funds and she's a wealthy woman and so we wanted a baseline they had a they had a medical examiner looking after her had her so called mental anxiety because she was worried about being a poor woman and she's a multimillionaire and so for the time it is i think had one of the two thousand and three tax financials that was a time issue in the case now wasn't the time an issue in the case the activities occurred in two thousand and seven well ok so some of them did we felt the earlier time period was relevant the analysis wouldn't change one bit your honor if you say everything before two thousand and seven is irrelevant i don't concede that but the analysis wouldn't change a bit or we'd be in a different situation if the other side were here saying we're going to produce everything from two thousand and seven absolutely forward but not trying to cast that we want you to let me come back to my very first question there is a lot of legal support for it and you say well they brought it up and he rejected i want to know where i am just read his order in motion the motion for reconsideration and all it says is that the legal arguments previous thinks hitter by the corps he doesn't acknowledge that he applied the wrong federal and then he says that they didn't fully brief why they believe california law should apply california case i can what do you think there was a substantive there was a this is a change in the federal rule make any difference as i read the commentary to the amendments to rule twenty six that essentially says this is what the rules been all along but we want to make it clear i'm not sure there was really a change in the standards to be applied even though the judge says quoting the old rule i don't think it made any difference your honor that you're always supposed to look at the relative costs and and and relative benefits of this and we're afraid judges haven't been so we're i mean i was involved in the process and i think the notion was that the change in rule twenty six was just meant to to emphasize judges had perhaps not been applying it in the previous language so i'm not sure it's a change in the rule i think it made no difference here because i think is judge is honest empathizing you know if you look at the time period if the the failure here is the party who was ordered to provide discovery didn't cooperate with the court they just said i'm not going to produce a single document not even the documents that everybody would concede were directly relevant they wouldn't produce it for one year they wouldn't produce it for six months they wouldn't produce a single financial statement in fact the most infuriating thing here and it was that we had taken a deposition and we had a transcript from a california case they were involved in we didn't have the exhibit we didn't have the financial statement but we had testimony that said the financial statement characterized the transactions that issue in our case differently and we asked made the transcript of an exhibit to the deposition and this is that each are one fifty seven so it's more a whole lot more sense if you just for a question that document well what you thought more stuff was relevant your honor once the judge rules who controls the little guy sitting out there saying your honor you've asked for twenty percent to many documents so i don't have i don't think you probably ask for eighty to ninety percent from a document that's the problem here but there were certainly some relevant documents right and that and to me that's what matters the burden is on the litigant not judge martina's that's flipping the rules of the way this works if they had come forward and done what they should which is consistent with the williams case in california and said we will produce the financial statements will only produce them for this many years we concede these are relevant but here judge we've got these other documents and were identifying them specifically and we don't think we should have to produce these this would be a different case they'd have something to talk about but they didn't do that and they they have they they're trying to turn this into a complex constitutional case when it's their misbehavior that created the hope problem please look at page twelve to fourteen of the brief of appellate i'm not going to reciting now but it details what we did produce which were the bank records regarding the two thousand and seven both two thousand and seven transaction  as i read the record you produced the check and the bank record that showed that you wrote the check right the underlying bank record what else and e mails the e mail chains and the correspondence between the parties are you  production made it completely unnecessary to produce any other financial information we think that in light of an when we received an order that was not based on the correct legal standard which should have been strict necessity and then we raised question a question i asked you yeah of course to the question is do you think that production that limited production meant that you were there by excused from producing anything else that was relevant to this matter your honor no ultimately we says to do in the ninth circuit civil manual which is what we followed which was what you should do instead of letting the horse out of the barn door which then makes it all moot by complying with the discovery order you're supposed to stand on it and issue discovery orders all the time sure sometimes they're overbroad litigants in those situations typically say here's the stuff that's that's not overbroad i'll produce it as the other stuff i won't and the judge then says all right i'll give you some sanctions or you can produce it in private or something else the department problem with this case and it's an essential one is that you provoked you thought it was a good idea to get a dismiss i don't care what manual you read you said to the judge dismissed the case so we can go up on appeal and argue about it so i have a hard time on appeal considering the argument that maybe the the order shouldn't have been so know and your honor it if this had been a case in which his honor boyle had applied the correct legal standard and given us an overbroad order that's the meat and potatoes case you're talking about in which we do that task but it's a sure of course but but this wasn't that case this was a case in which his honor below was very adamant about not applying what we felt was the don't like the federal it your honor we haven't had a chance to address that case it just you know that you just sent it in yesterday but if you want me to address it what i would say first is that it had nothing to do with financial discovery it was a wage an hour claim in which the right to privacy is much diminished because the contact information of fellow employees is what the plaintiff was seeking and the court expressly says that in that instance most of those employees would like the plaintiffs to find their contact information in order to be able to help them out with a wage claim that will go in their favor so the right to privacy is much lower in that search stance and then the court does specifically say in dicta that there are core privacy concerns such as medical records and financial records where a different standard might apply so have yet to see how that california supreme court case gets litigated out on the key issue of discovery into financial records ok thank you very much