more than a simple argument over three thousand four hundred e mails that could be sent by the click of a mouse this case asked the court to determine the batteries within which a government can use a civil investigative demand and administrative subpoena government's own actions and arguments in this case demonstrate that all communication sought under requests twenty one are not reasonably relevant to their investigation and t restrictions on a c i d's information in use are not a rewriting of the statute the judgment of the lower court to be reversed while i want to spend my time focusing on the over breath and enforcement issues i have to touch briefly on waiver the government below argued that we waived on appeal they concede that the lower court erred in adopting their position but in a footnote the government's entire way of argument a ts to it doesn't matter it was harmless however i direct a court to the report and recommendation and the language of the lower court it's clear that the waiver analysis tainted both the over breath determination enforceability determination at page eighteen of the report recommendation the lower court expressly states with regard to over breath if the respondent had filed a petition to modify request twenty one it would have had a good chance of getting that request narrowed nearly a concession by the lower court that this may be too broad of an r f p with regard to enforcement at page thirteen of the report recommendation the court said if the respondent had timely objected this dispute would have been resolved before the government was required to make an election dismissing the petition would effectively grant crossing your care the relief it seeks despite its failure to timely id is born from the bell case and that they're investigating the same conduct they were directly asked at page thirty of the transcript there's no new case here and their response was there's no new case here they  consented to the voluntary dismissal in that case as they're required to do under the law and we know that voluntary dismissals are self executing and they move all pending motions before that court now the government relies on and the von case but that doesn't talk about enforcement of a c id that talks about whether there's a residue to cause effect of bringing a suit no one saying if there's not a that there's some sort of residue to caught effect to bring a false well i think here one is because they said they're investigating they are investigating one of the same what was brought with bell so it's the same investigation so if it's the same invest investigation then if they want to start a new investigation they can certainly file a new c id but when they're saying we're investigating the same conduct as bell and we didn't intervene and then we said well you can dismiss bell and now the procedural posture in valleys that we're already in dispositive motions and the deadline to amend pleadings has already been cut off there's a fair affectively that investigation regarding the bell conduct is closed they want to open a new investigation and issue a new c idea i don't think there's a problem with that but enfor well i think there's there's a difference between filing a false a false claims act and enforcing a subpoena in a case where a party is merely voluntarily dismissed we know that if the government party they couldn't use a c i t the avco court said it would be an absurd construction of the statute to say that they would be allowed to enter the enter the litigation and use a c id while the rules of procedure and there's a relator who represents their interest we're having two different standards and the problem with two different standards for the same for the same documents undiscoverable when the relator is representing their interest discoverable when the one while we know that once the shoot the government makes an intervention decision one way or another that's occurring in hospital case they couldn't they couldn't issue even care in hospital i believe in that case i'm sorry i half out it's either you have to intervene or you don't and if you don't you can come back later that's remaining thank you thank you if you don't you have the ability to come in later but there's no indication under the false claims act that this was designed to essentially be an end run around rule twenty six dollars where information could then be shared with the relator you say once the government says we don't have enough i think ok i understand your question once the decision to intervene is made even if it's the client that the rules of procedure apply to the litigation and that means the practical effect  if they intervened they could not use the c i d and if they don't intervene where they have a real party in interest protecting their interest they wouldn't have they wouldn't be able to use the c i d because they could use that information during the course that year they got some of the e mails and they did them that perfectly permit correct and that's that's why we're saying that's why we're saying your honor it's an absurd construction of the statute to say that a relate or who is representing the government's interest is bound by rule twenty six could not ask the question and get documents but that under one litigation is already commenced that the government could sit on the process or later isn't representing the government's interest in determining whether you know the relator you're on the right or stand in the shoes of the government and and they suit or in your honor under that logic the supreme court's decision and einstein would be of this aerated because we know even the cases the government sites the government cite unite attack that they have to stand in the shoes of of the government to spy to at least some capacity because they have the ability to bring the suit they have the ability to file suit if they get a marriage based decision the government's found if they lose the government's honor i think that determination that that determination has to be made through whether to intervene or not now the question is whether they can still in force at the c i d after they've said well we're not going to be a part and one we have this twenty six dollars issue engine warning that they didn't we don't want to be a part of that we don't they this time because we don't have enough information it's not period or there's nothing and the government doesn't argue this doesn't even argue it there's nothing in the statute that allows them to say we're not intervening well right now because we're still investigating it's either we're in or we're out and they're out so they can't enforce a statute which would either allow them that would either allow them to go around twenty six dollars or or on the other hand hold the document or not share carol they actually specifically said that they were not intervening at this  during that time and the statute itself at three thousand seven hundred and thirty dollars c three makes clear what they get when they hop out they get all the pleadings they get discovery they get deposition transcripts they have a right to communicate with the relator they have the right to intervene later on for good cause if they see this going to a merits based decision they don't like they may want to hop in and settle the case so there's not bad case either certainly a public policy reason behind why the government may want to intervene but the question really becomes are they allowed to enforce what the d c circuit described as an extraordinary an ex parte means of discovery after they've said well we're going to sit this out and the rules  discuss it on your rebuttal you reserve three minutes for a bottle what we're going to do though is we're going to take a quick break judge carnes i think you're breaking up a little bit and it may be just a bat an action i'm sorry to ask you to do this but would i appreciate that thank you apply to to see on big and i'd be happy to answer the questions from the court  if you can hear me i would like to know from the government council how did the deadline originate was there a motion a request the district court and if so  investigations are quite complex we need to get multiple extensions and what happens at that point is that judges sometimes become rather impatient when they say no more this is it and basically that's what happened here so we got we got a after sixty six requests for extension of time the government waited twenty months to file a c id the government waited six months to file a petition for enforcement in this case  the government sat on their hands and now complains that they should be allowed to continue extra time to investigate when they didn't for lack of a better for lack of a better term of art they weren't vigorous and diligent in perfecting their rights to even enforce the c i d in the st place because of a six month delay briefly would you argue to counsel did you argue that to the district court that they shouldn't be allowed to basis no your honor i believe what we argued was that the just the time in general giving them more time it seems it seems that to say that the and how we say it in our  hands is a misreading a clearly erroneous reading of the facts because we didn't have an affirmative duty to move to set aside the government has an affirmative duty if they want to enforce the following question eleven quick question did you asked district court government a deadline in the bell case i honestly don't know i i know that i'm sorry i'm sorry i'm asking did you ask the district court to give the government a deadline to decide whether or not to intervene i don't believe i don't believe we did i believe the court did it on its own after after the government moved for its th motion in the the government's cases that they cite make clear whenever doesn't mean whenever whenever doesn't mean whenever that that's almost the simplest argument i can make they cite mark would mark would it judicially create a doctrine that isn't considered a rewriting of the reasonable to construct it in a way that they could intervene and use so we know that the court has the power to rewrite the statute or not to rewrite steps to interpret the statute in a manner that wouldn't constitute a rewriting and mn asking for a call back agreement and while that may be fine into civil litigants disputing the government's bound by the th amendment it's constitutional protection it's not a constitutional remedy we're we're protected from disclosing the relevant documents up front it can't be in the words of the government we will return any materials waited to be be determined outside the scope of our investigation so from the beginning they've conceded all doesn't mean all they said all doesn't mean personal e mails they said that really looking for communications that would demonstrate individuals responsible for submitting claims to have federal health care programs for setting corporate policies on the submission of claims and directing actions of lower level staff those are well and good but that's already been disclosed we've given eight hundred something e mails and responded to twenty other all recipes so we know all doesn't mean all we know that whenever doesn't mean whatever there can be a reasonable restriction and all communication sought is necessarily broader even under the reasonably relevant standard of a c ideal which is broad and sweeping even under  finish my thought and conclude your honor you may be very quickly conclude because i could give you some extra time thank you your honor just in summation on the relevant point we know that all communications is necessarily broader than those three categories which they present on their answer brief even under a relevant a reasonably relevant standard so frankly found on us at the court reversed thank you you are all right thank you very