reseated before we turn to our argument carol do we have a motion calendar only one of those motions is being argued soil turned to those parties first morning and may please the court i represent plaintiff at pollini who brought suit against the east from a post central school district because it's elections of the school board violate the voting rights act three members of the school board who are not defendants in this case have as the notice of appeal was filed we filed a motion to dismiss for lack of jurisdiction not in that case but before arson or motion ok continue three members of the school board who are not defendants in this case have refused to comply with district court orders directing them to testify at deposition regarding non legislative activities because the school board and the district claimed that the school board school board members are utterly immune from testifying in this case whatsoever regarding their legislative or non legislative activities likewise they are they claim that they are entitle to immediately appeal that discovery order to this court because of that same claim of immunity the district and nonparty board members position they're not party to the action they are not your honor their positions turn discovery on its head and it would allow witnesses to obstruct and delay any relevant discovery or pretrial proceedings simply because they hold the position of government as courts have explicitly and repeatedly held nonparty legislators can be called to testify about their non legislative activities just like any other witness this court should dismiss for three reasons first  court has conclusively and repeatedly held that it lacks jurisdiction over discovery orders unless there is also an order of contempt second legislative immunity and so argument pardon it's a ripeness argument we also have a bright argument your honor but this until they are held in contempt right so that would make it not right correct no one has been held in contempt they have not submitted themselves to contempt and therefore this court simply does not have  over discovery order second legislative immunity does not apply in this case legislative immunity protects the defendant legislators for their legitimate legislative activities here the board members are not defendants and do not face any civil liability and third any claim by the board members that their testimony is barred by the legislative privilege which is a testimonial privilege protecting information relating to legitimate legislative act fifty also does not apply here and in any event is premature because the depositions have not occurred yet and the district court's discovery order compelled the board members to only testify regarding non legislative activities to the extent that any line of questioning delves into potentially privileged material the board members in the district can object at that time but at this time to issue a blanket objection what so to any testimony whatsoever is premature and inappropriate the board members can see that they have relevant non privileged information relating to the topics that the district court has ordered them to testify about they produce documents relating to those same topics that they have classified as non privileged and yet now they refuse to testify regarding either of those topics or the documents that they have produced the district and board members claim here that legislative that legislators regardless of whether they're defendants regardless of whether the order actually implicates legislative activities means that they're utterly and completely immune from providing any did any testimony of voting rights act cases facially absurd legislators frequently provide testimony in voting rights act cases here the plaintiffs have to post to other board members a former board member those board members are represented by the same council who is representing these board members here today not a single privilege objection was issued during any of those depositions because the board member in the district of improperly appealed a discovery order on the basis of a frivolous claim of immunity this court should dismiss and i would like to reserve the remainder of my time thank you before i call you to the podium i neglected to announce that judge would jurors joining us by telephone he's not on the video but he is they are so if you hear him attempt to ask a question please stop what you're saying counsel you may take the podium  thank you good morning your honour's my name is randall levine i am here for the appellants the individual board members of the east river post central school district what's important to set out at the outset as that there are two motions before the court both of which turn on just one issue which is only whether the court has jurisdiction even to entertain the board members arguments below the district court ordered that the board members would have to appear and give compelled testimony about what we contend are clearly legislative matters the board's response to community members complaints and also the board's internal deliberations about appointing new members to vacant seats on the board the board members of asserted an objection of legislative immunity from that compelled testimony it's well settled in this and other circuits that legislative immunity bars not just liability but also bars all discovery of immune board members or other legislators the district court overruled the legislative objection as in all other instances where an immunity objection is overruled whether at the discovery stage or on motion for summary judgment under the collateral order doctrine this court has jurisdiction to review that decision immediately and on an airlock atory basis and the reason for that is well settled because if a legislator has legislative immunity or if a member of the executive branch has qualified immunity for example the immunity is immunity from suit and suit includes all compelled process including compel testimony and once that bell is rung it can't be unrung if the district court were to actually compel and the board members were actually to appear for depositions all of the benefits of immunity would be lost that's why the collateral order doctrine applies here and it applies very very clearly a court correct correct we made these arguments court that's hearing the appeal i think that's a very good question your honor i have the same question under the but i did not although i wouldn't oppose such a motion i w to dismiss was filed almost immediately after we filed a notice of appeal which stayed all briefing scheduled on the merits anyways and so we have simply been briefing the issue just of whether the court has jurisdiction and the question of jurisdiction as you've noted is just in extra could be intertwined with the question on the merits because whether or not the board members have a legitimate claim of immunity is the merits question at the same time it's in the before the briefing and with a full organ argument on an ordinary schedule or an expedited schedule of that's what the police would want to do either way clearly this is a merits question that deserves a decision on the merits by the are no further questions then i'll take a seat i have work for opposing counsel are you in favor of expediting the appeal and hearing both the issue that you raised this motion and the merits at the same time as soon as possible your honor to the extent that this court decides it has jurisdiction and tonight our motion to dismiss would be happy to expedite the appeal we've been trying to depose these board members for over a year now so are our concern is very much that this issue be taken care of quickly but as a threat threshold issue this court has ruled in other similar cases that just because of a baseless claim of immunity and here again the board members are not immune from providing any pretrial discovery they've already provided pretrial discovery by providing documents in this case and they are not defendants and are not not civilly liable so their issue truly is legislative privilege which is premature to argue at this time and in favor of expedition of this appeal again your honor to the extent that this court deems that it has jurisdiction over this case we would be in favor of expediting thank you both will reach their decision but get at work a decision as soon as possible thank you