minor honors may please the court my name is marilyn winters and i'm representing the petitioners in this matter basically we've asked the court by way of a request for a writ of mandamus to  procedural due process and provide notice an opportunity to be heard well but let me tell you what's bothering me about this case so at least as to one of the that is you'll have a chance in your argument to get right to it them as totally dispositive but you know first first if not first and foremost one of the factors is that there be no adequate remedy apart from  so what bothers me here is how can the petitioner say the petitioner has no adequate remedy for a procedural due process violation or purported violation could have i mean first the petitioner could have moved for the magistrate judge to reconsider and provided other information and got the hearing that way now maybe that wouldn't get anywhere titian or  then have a right to go to the district court and say the magistrate judge did something without proper process we want to hearing or we want different relief and as i'm saying you have a clear remedy to do that ok i understand that congratulations on the first one but now on this one why should why should we put ourselves in the business of reviewing what magistrate judges do by way of writ of mandamus when there is a clear statutory remedy to go to a district court basically in the district court judge in this case decided that the magistrate was to hear this particular hearing it was not addressed t and looking at the history of this case and looking at the magistrate's opinion we did we believe that it would be futile to you know i'm not asking you what you believe whether you believed it wouldn't work or would be futile didn't you have been an absolute statutory right to ask the district court to change that decision we could have done that your hand if you could have done that then does it does it make sense for an appellate court to entertain which in fact retain you know hire them or make the decisions on their being hired in their it just seems i just speaking for a while as one judge who seems to me it would be extremely strange for us to put ourselves in the position of reviewing by writ of mandamus things that magistrate judges do apart from you know the merits of the of the issue of basically your honor th well if this court were inclined to remember back before the district court so that there could be noticed an opportunity to be heard on the matter that would be fine and and we would comply with that we mandamus do we have jurisdiction to send it to the district to the district court you know you know you're on it so i basically we have never appealed or never you know quibble with that but the magistrates ruling we have so i made a litigation choice it sounds like that you thought it would be a waste of time to run through the district court level and he came directly to us well we didn't think it would be a waste of time but we thought that we would not get any difference of a ruling and at least so it seems to me so so i'm very troubled by the idea that we could grant a mandamus that i mean if we could do a mandamus on this issue i suppose if there were a totally arbitrary discovery ruling in the internet containing both sealed information and in camera review information and we just felt that the air that was made here was so flagrant that but it was that flagrant and why would indicate that it would be useless to appeal basically to give a motion to disqualify which i think probably should be handled by a district court judge and just assign it to the magistrate judge  to yes your honor thank you great tollefson appearing on behalf of the real parties and interest in this case and the real party's position is that this court should not exercise its supervisory authority under the all ri a magistrate judge in this kind of setting or of just record would just be the issue order to show cause you know why you shouldn't be sanctioned by removal of your admission to the bar for not answering this and then a party may be set up for argument or maybe do it in writing but party could you know give the reasoning so the lawyer could say well i didn't answer it because i thought it was so private that i think i have a constitutional right to not tell you right in answer because i thought you were getting the information from another witness right in answered because there's a bar investigation in my state you know and i'll be gosh darned if i'm not going to get disbarred over submitting an affidavit here i don't want to admit anything who knows why i didn't answer it because he was never asked that question i mean we do we do have some statements in the briefing his reasons why he didn't answer it but the council itself is there an a from the former lead counsel saying why he did not answer now and that that raises two points first is i would argue that there is a distinction again in this case where they refused to submit an affidavit a rose in the context of a pending motion for disqualification so that's number one it's number two goes to the issue that the panel has already addressed which is that there's nothing it's not even brief just a why they did not submit he could  i don't think there should be and then you can address my concerns i don't think there should be a writ of mandamus because of the bombing factor about having i think having no available remedy is so important and it would be so a due process error if not a due process there are practical there and the lawyer should have been given a chance to to explain why he did what he did or to be heard on the issue of the sanction what i'm wondering is do we have jurisdiction to send that to the district court or as is our jurisdiction just that denies the writ and of course you know a district court can sue a spawn to do anything i guess here  if the lawyers on the other side want to submit it again but i mean do we have jurisdiction to remand this issue to the district court or do we not if you know my response to that there was then the magistrate one point and october of two thousand and three awarded attorney's fees for us against the plaintiffs and the plaintiffs filed an objection with the district court as to those fees so there oh i'm sorry this was after well after that after this is attorney fees for prove your prevailing on the motion was it was for discovery i discover sanctions and so it wasn't related to this one and all no not at all because if you say there's a procedural due process problem you've got to give someone an opportunity to be heard that that doesn't mean that after they're heard they're necessarily going to get relief obviously and here the failure to answer the the way i understand it from the factory is that they had no other adequate means to address the rule and i believe that there were several steps that could have been taken the reconsideration there was no of requests for  that would seem logical to me your honor the another point that was referenced in the magistrate court's opinion was that he was also displeased with the fact that the attorney chose not to file for some sort of protective order or there were other means i would say that the other adequate means to address would also have arisen at the time the court ordered the submission of the of the affidavit instead of trying to take some means at that point i refused to submit it this would be a reason why the magistrate judge thought he didn't really have an excuse because if you had some reason he could have asked for some protection order or he could appeal that earlier order and he couldn't just disregard thank you thank you very much give you sixty seconds to respond mandamus not that you don't have them around right but we basically we did not believe that that going back to either the magistrate or the judge or the district court judge in this case would have met with any different requirement than that if you believe that you really haven't given us reason like on the record that would that would show that it would be futile to go to the district court well ok i'll give you an example of what we've dealt with here it's been  relation to the defend it's obtaining some medical records under a confidentiality order that they were ordered to provide us with records as soon as they got them they got the records in october  they promised the court that they would provide them a mediately in january of zero three and this has been raised to the court they provided they said we'll provide those records as soon as we receive them we didn't receive them until april