here i think you're supposed to be mr rosenberg mr yes we're here your honor yes ok terrific so we'll hear from mr rosenberg st we'd be reserving any time yes three minutes please i'm going to be keeping time at the same he the same rules apply you'll have a total of fifteen minutes twelve minutes for your principal argument i'll keep time i suggest you do the same so you don't get surprised and  without further ado he may proceed it please the court laurence rosenberg for t v because like tronics and c d k india my clients have no claims in this case they're not parties and i've been subject to the jurisdiction of the united states courts yet are crowns who designs for their capacitors are at risk d because the lower courts did not follow who troll in president reports below error it is a matter of law in three essential ways st they did not properly account for germany's and india's interests in the hague convention analysis nd they did not even attempt to narrow the request and make them less burdensome or less problematic and rd they did not properly not for th litigation is over as to t k we have no further role in the case the letters of request are only involvement just under this court's decision such as in ri madden and the r j reynolds case that we cited in our briefs it is final an appeal e as to t k we simply have no other opportunity to appeal this case later where a nonparty so appealing this at the end of the case really isn't an option for us nd what is your best avenue for an appell review grace a couple of different ways to i think the best avenue is just direct appeal i do think the collateral or doctrine is an alternative but i think does apply here because we're dealing with trade secrets but i really think the best avenue is is the direct isn't enough that you can fight that fight in germany and india you know if nothing really has happened there really isn't any discovery that's been taken can't you fight that fight there and win that render this non final  for a couple of reasons st that indian jury proceedings are not part of the u s proceedings under the federal rules or any other principle of appellate procedure and so the possibility of fighting with would be a different flight in germany or india doesn't render this case non final were to the point under the keep home of the analysis of there are a space iall it really is up to the united states courts to st hiller their requests to make them as unobtrusive as possible not to simply leave that they are getting an order saying we be u s district court say we need this it's necessary it's critical and you're putting the other poor in a very difficult position even if under for example german law there are defenses you can raise to discovery potentially but you're putting the german judge in a situation where he or she either has to follow the u s district court request or not and that's a very difficult position to be and think for example of a u s district court we're getting a request from france of surprised that at the outset you didn't challenge the the standard that that judge start used in reviewing the magistrate judge its ruling i thought that was one of your principal contentions namely that this was a dispositive motion so it has to be remanded for frazier had to do with the parties think they were going to be out of court they were going to have to go to the administrative procedure to the agency they were going to be out of court are you saying any time there's a there's a you contempt order that might mean that it's not dispositive but in this case because t v doesn't have that opportunity because the proceedings are truly over with respect to d d k there's no further supervision by the district court of the discovery it really is  cases i've been involved so your contention is this needs to go back to the district court for them to to perform the correct analysis under to nova review that is yes that's one of our contentions and we believe that that is for that reason noted not only the special vigilance that every speccy all requires in these contexts but also notes for concern that far and that the u s just reports are not experts in foreign one proceedings and the concern that was a different situation than going under the convention and also i think that automotive recession applied and abuse of discretion standard if the circumstances roll different there but but you're right about aerospace yalit was a question of whether the civil rules or the hague convention applied but in the course of that the court laid out these comedy findings and in footnote twenty eight dollars of that decision the court specifically said that the five factors we're talking about apply to any comity analysis and we've the court made very clear that there is a comedy analysis whenever issuing letters of request is that lesson because if you go under the hague convention rather than under the federal rules of civil procedure well i think once you go under the hague convention that's where the comedy analysis really kicks in i think there's a comedy analysis at the outset as to whether you use the federal rules instead of the hague convention and then once you're which of the just positive motions listed in the federal magistrate act most resembles your motion i don't have a federal magistrate act in front of me but i do think that this is a dispositive motion want to discovery issue for which there is no further proceedings and so i think that that is close enough to what's in the federal magistrate zakk that this should be treated as dispositive again because there is no opportunity for today to appeal this at the end of the case no opportunity to take a contempt order no opportunity to do the things that might render it non dispositive or non final and i do think that the court in sales had it right if there is a question i think the board should treat it as dispositive and i think there's more than a question here i think it's compelling that this really is a dispositive issue i see my time is running out there's one last point i'd really like to emphasize which is that the  below didn't even attempt to narrow these requests at all and i will tell you i've been involved in a lot of these cases this is the st and only case i've been involved in where the district court with a seven hundred and eighty two dollars or a convention case didn't even attempt to narrow the re ts to make them less a d burden so that i think is just a pretty substantial error that should be corrected on every man d and then the final point which i haven't addressed too much are the sources of information d ar challenged has the vast majority of the information that's been asked for here and i think that wasn't accounted for at all the district court of the magistrate judge didn't even discuss what information might already be consider the merits under the correct standard to read rather than manning i think the court could do that i think it would also be appropriate to re man for application of the correct standard i do think the court could address the merits of it believes it's with respect to the protective order and trade secrets i just stand that that was made actually there was an order that was entered by the district court incorporated the protective best of my knowledge the department has served that protective order perhaps they have been on the aware of that but one of the reasons that we don't believe d that it's a vision for the german indian courts is number one that protective  is not necessarily enforceable in those courts it's not clear that those cords would accept that protective order because they were it's inconsistent in the anyways d with german and indian procedure germany and india even though they were d tech secrets right now in sort of getting them to the designs maybe there could be one question you know is there a test report that shows x or y can you please explain the chemical interaction of this thing and this thing maybe there's a way to give them the information they really well this is a television or something is on and someone's background maybe it's one of us does anybody have is anybody streaming the you tube in the background it could be picking now you just went if you're using like a separate set of speakers or whatever that it's an item's or close to your machine because it could just be speaker interference thank you it sounds much better right now ok other than what it has done and that is coming to us is there any other way i can get an appeal not in the united states courts your honor but they can go to germany and india and essentially do what they're doing which is try to quash the discovery no  but they have no way to appeal what judges start held no way to appeal and is that the rule under madden is that the standard we look at why i think you look at whether there's actually finality your honor and our point is there's not fin kaye has no further remedy and here they have the remedy of being able to go to germany to go to india and the court below is very clear and was very cognizant conclusively resolve the district court must conclusively resolve the disputed issue and contra tedy case arguments the district court did not conclusively resolve the issue of the production of trade secret information or the production of any information argued citing carcamo electronics is that the judge starts ruling effectively denied all trade secret action that that isn't wrong in our opinion but because in the ruling that it's appealed from the court below specifically directed the parties to enter into the protected whereas if a supposed discovery dispute arises d d k can go to the district court and seek review if they think we are potentially misusing or or there's protections that need to meet implemented they can go to the district court and cargo electronics throws a contrast between orders like the order of the court below the grant some protection traits and those intended to at least give some cortex into trade secret information so therefore under cargo it's non final how about the other two steps i mean can you really disputes this is an issue separate from the merits  court d precedent is clear on your honor i'd like your honors i'd like to turn now to that standard overview if i could and and and mr rosenberg spent some time talking about that again to be clear believes this appeal should be dismissed for lack of action but if this panel does consider the merits it should review for abuse of discretion it's well settled in this in this circuit that discovery orders are reviewed for abuse of discretion t d case not provided any reason to depar standard they make well d i don't think they're arguing that i mean review for abuse of discretion but didn't judge start abuse his discretion if he used the wrong standard in reviewing but the so you know abuse of discretion means you know contrary to law and if you didn't apply the wrong standard i e clearly erroneous as compared to denote then when we hold that he abused his discretion i think you could your honor but i don't think he in correctly applied that and i and i think he took a does make us do because we have a not dispositive order is that what you're saying that's correct it's not dispositive and d d k does argue to be clear under that we view those as just confirming that the proper forum to review foreign discovery requests is the state that receives the and the reason why i think courts have said that seven hundred and two requests are immediately is because that is all that happens in this state that receives the requests they either you know they may grant the application or they do not and then it's all over that's not the situation we have here  protect or that against as that we have to district courts have to supervise these things particularly closely and that they should read the most careful consideration should we i mean considering don't think so your honor and i think this court's opinion in the automotive refinishing case is on point and in that decision this court applied de novo review to a to a very narrow balancing test as to whether to resort to the hague convention or the federal rules and jurisdictional discovery d that decision was reviewed for abuse of discretion and that is what t v k is asking the court to review here to deny a seventy two dollars application that's reviewed for an abuse of discretion and in redland soccer this court says the standard d that the court used to exercise its rulings on discovery issue those are reviewed to know  get internal t k deliberations about how the aero specific plastic of these capacitors is designed or how in this again narrow very specific part of the capacitor how these materials are selected as far as testing you know we asked what testing they've done and frankly your honor i believe that's about as narrow as we can make it while seeking meaningful power to do so but in my view it would be more proper to remand there as much as i don't want to delay this any for the ok so your honor i have just a couple minutes i do want to turn to to a couple other of the comedy factors that my colleague raised on the interest balancing it district court correctly held and i don't believe he can really challenge is that the united district court in essence told german and indian courts to ignore their own trade secret and d that is just not the case against as we've discussed the district court and very cognizant d of burdens on t v they require the finally very very briefly on on mr flow i do want to i do want to mention that quickly he was named individually because german law requires that you name an individual you d can't just essentially have a  and the fact that he's no longer employed by t k does not mean that he doesn't have relevant knowledge and judge starr made the factual finding that he does have rolls so the fact that he's unnamed is not a reason to to reverse any rulings of the courts d and with that i see that my time is up unless your honour's have any question status of that or is that insufficient there is no alternative you're honored nothing has been suggested by t d k i assume that is because they have been challenging any discovery at all in germany if d the german court rules that they have to put someone forward and they may come and offer us someone else at that point that they have not to date your judgment rebuttal first of all i want to focus on a few of the things that my opponent sad because i think they can see that some of the issues in the case st he said that he agreed that there is no further way for t to cave a challenge  think that's more than just some that's actually the majority of the information the only thing he says that we can't really can't obtain from our child like our trade secrets which again are very broad and one of the things that's asked for the minds of our entire capacitor it's very similar to the kinds of things the court in aerospace we all said is very burdensome the next point i'd like to make it is going back to judge to garrus your question about the federal magi that the courts may have paid lip service to the five factors in we believe really ignoring the german and indian interest in not narrowing and not considering the sources of information that's not just a factual  bill you know we also said to do a client if you can name somebody else we'll consider whether that's a proper party and they've never tried to name anyone but d local the situation in germany is very is that it's a nation stage there's been a ruling whatsoever on the discovery there are any proceedings right now d in india that we're aware of so i don't believe that is you know i only jim avenue for us to get released certainly at this