it afternoon your honour's for more than fifty years n t s b has called upon outside experts including technical personnel from relevant aircraft designers manufacturers and operators to ensure that it can effectively investigate accidents and n t s b and its counterparts around the world operate this way because they recognize that having aircraft specific expertise is critical to the work that they do for aviation safety not here participating in these investigations to gather information to take back to their employers and it  that is in a different analysis with respect to the foreign office and foreign companies or the foreign agency do we have to look also to the  back so the convention you know functions here and has been in play now for some seventy years creating this agreement across the international community about the way these investigations should work and the importance of having technical advisors and experts come into it so that the adults is very much of a piece with the domestic regulations and these have long work together and we are party to the convention because we think it's really important to have these voices at the table informing the n t s b investigation and so there really isn't you know any misalignment here both the regulations and  clear that the country that is taking the lead that organization here its n t s b is in fact in charge everybody recognizes that the rest of the investigation needs to happen under the control and guidance of that accredited organization and the investigator in charge that's named that is you know a uniform approach and it's understood that everyone is operating in service of the deliberative process of that organization here and t s p so we don't have any issue here the disclosure rules the confidentiality everyone's expectations here are the same and so fact that you have technical one you can you often have when you have a consult relationship not every consultant is an independent contractor so you're often you know dealing with somebody who's got multiple bosses the someone they work for as well as the person that's bringing in the consultant but there's also case law about the fact that you could have a two tier relationship like the t case i think that's in the out of the nd circuit where you have somebody doing a report for someone else and then that person in turn is the the consultant that's actually providing expertise to the federal agency so there's a lot of different ways in which are a lot of ways to look at this but that at the end of the day the answer is the same across the board which is that no it doesn't change anything that we're dealing with a helicopter manufacturer and an engine manufacturer that were overseas and to go back to judge those plane i think i mean there are what i would say is that the absolutely these are of course employees of of companies but they are not coming into this process when they show up at right but under the consultant corollary i mean that's the very nature of it that it's a recognition that there are going to be instances where an agency needs to go to outside experts and whether on a paid or unpaid basis bring them into the government process or have them inform the deliberative process and here these individuals are actually functioning much more like employees than in a traditional consultancy situation in a normal consultancy all of the you know you would read a i'm not an expert on the inner workings of can see as including agents of the agency if you will even if they're not technically on staff i get that it does seem to me a potentially a bridge too far to set a minimum it's only another st so i mean so here they are not it is important to understand n t s b is role and they're not coming before n t s b in that capacity to advocate for themselves as a regulated and to the like to step back i mean plaintiff's entire case is the suggestion we want to talk about the case law is plaintiff's case rests on the idea that this is clamorous and in klamath you really did have an entity not a regulated entity but she did have an entity with in that case a relationship with the federal government with the bureau of indian affairs coming forward lobbying on behalf of their interests and the court the supreme court held that that was a problem because the dispositive point there was that they were actually more like beneficiaries than consultants they were trying to get something from the federal government they were trying to gain some advantage that would specifically in the court was was clear in its language that was necessarily adverse to others it's interests of the consultant then i think you have a problem i think that's what mr jope says because i can easily imagine how the participants here the participants are interested it's not just that they have an interest we can talk about cases like mckinley and even cases from this circuit recognizing the consultant corollary as in wu where arguably i mean people have an interest an interest isn't what creates the problem in come up it's that their interest that they're advocating on behalf of is necessarily adverse in a zero sum way to others they're not there to advise the government based on technical expertise they're not being brought in because they absolutely so when they say that right even if they're still advancing their own interests and that's what they're supposed to be doing the court says look it's legitimate this case is not that great these entities are coming in and they have agreed to a set of ground rules under the convention if agreed to a set of ground rules under the regulations that when they're sending a representative this technical expert in the person is not there to represent the company's interest is there to participate in his peace process that person is walled off in terms of communications so whatever information they gather they can take back with them so we know that that concern the plaintiffs raise is not in play and there's other restrictions on their ability to disclose information security requirement edges but let's say an employee is tasked by the n t s b and e s p to play this role you tell them you know you're just here to help us do good public you know about certain things and you are not allowed to share any of this with your company charge always has the ability to remove the director or direct the removal of anybody from the investigation who is seen to be breaking the rules or trying to prejudice the president or the whole thing is over if the if the materials are just disclosed another entity within the regulated community john kerry how far will he take this metaphor well so i mean it's this i mean as with the fact that if a employee of the agency breaks the rules a bit and this will really get my point which is just to before i forget just to make one point which is that as i started out here come up my point was really that they were advancing their interest and that's what they were supposed to be doing where is here the whole idea the the way the  system has always operated and frankly if it wasn't working we wouldn't still be doing it this way so many decades later is that you know people are abiding by the rules and so we don't actually have this situation frequently where we have to think about what kind of sanctions to oppose although the vested interest in charge certainly have the authority to remove people if they're concerned about prejudice and as experts in selves they would be very capable of doing that but the the point was to be that the entire district court decision here is premised on this  bias this idea that they must be interested itself interested and acting pursuant to that self interest there is a shared interest here which is safety to be completely blind air crashes are not good for anyone none of these companies benefit from not knowing the true cause of the crash and that's reflected in how they participate and i just want to be sure to ask you one clarifying point here there is there are two parts to the signals this one is whether it's an documents are are you know not subject to withholding of the exemption i don't read the difference here my point is suppose we saw that was we found out was wrong what do we do with that what do we  to do a privilege announcer deliver process announces from prison yet your honor the court did i mean this is we're here asking for this court to reverse the district court's decision regarding the consult corollary and then the necessary next step is a remained it is true that with regard to a number of the documents that were prepared by n t s b the court did go so far as to say if it wasn't for this consultant corollary problem that the court saw these would be protected by the privilege it just didn't address that with regard to the t america europe copter but all of this is at play on remain and this court doesn't need to reach any of that and we didn't need to address it because there was no ruling against us but when this court sends it back i mean at that point there are the plaintiffs would be free to documents and didn't need to but that would be addressed on remand and here they would i can i'm happy to address why they would be protected they're exactly the kind of you know typical when you think of the application of the consultant corollary these are the people if this court agrees with us that these are probably within the exemption these are consultants preparing reports to give their technical expertise to the government i just i just wasn't i wasn't sure whether we need to get you know the let the final sentence it would just be to say that like again the district court's decision when it comes to what it did it didn't make findings about it made this claim about seeing inherent bias but that was entirely based on an assumption and finds no support whatsoever in either the long history of b in the international community operating this way or in the record specific to this case and in fact there are reasons in the record that show that these individuals these companies were conducting themselves properly but since i'm out of time i will  every time manufacturer of these products is brought into a federal or state case almost for sure at least are as what i see you know and i the reason the n b is has done this is she's putting out a you know it's a nice observation it's a little bit else in wonderland in the real reason that they bring these people it is they don't have the funding from congress  the decision principle that it can't be there because of their interest or loyalty to their employees employers that they came from they have to be entirely self interested they're entitled to be there but they still are unfortunately serving the self interests of the people live pay them wives their retirement and so forth and so on and that is the reason don't work for big companies that have have been involved in the manufacture of the web they have the right to be here because i k a it's just junk employees that says they have the right to be there and that's true and that's probably because when and they their self interest and there are going to do everything they can to lobby and to try and make it what ever they can do as flame on someone else like the drive to do in this case didn't work so that's interesting mr joe you you would agree that any documents that actually are deliberative privilege that reflect on the n c s these deliberations those those shouldn't shouldn't come out of the foyer requests i'm just trying to get at what up i read our cases up to right now at our read our cases in this area has been pretty document specific meaning we can't just say i mean cases you can't throw a blanket over all of this stuff you just can't that's a dozen the four is there for it's to protect something specific just to protect deliberations right not facts not factual reports so in these cases the you've been involved in do you get something out of the out of the four or quest that bears on your lawsuit i mean i'm just trying to get at the just like in the tribe and playing a consultant corollary cannot be applied to manufacturers and operators who are up who are un p c interested parties stand to benefit from the n t s b just because the n t s b needs them to be there is they don't have anybody else to really not necessarily important here if it were not in trade in c they were self interested because they were who they were employed as would claim this or that in our requests if you go look at those in the violate the n t s b is a liberty process which is made up of the five members of the board it was not her agency can i get the exemptions that are covered and that's really the bottom  records should be reduced and and there is no consultant corollary if they were for that one of the manufacturers or more that of me is involved in the in the helicopter crash and the ensuing litigation you does your argument draw distinction between the i guess for lack of better terms of best against foreign participants in the us is there any difference when it's all the same basis they send him straight to the crash scene whether it's in you know europe and asia wherever it is because they want to be able to buy the debt nicholson or they also want to access to the following  and the area able to be at the crash site at all times as i pointed out they actually got there before the i see in this case had that lead to problems with other cases here and wheezy into the way and they have they are there to witness all  wreckage removal all of the engineering and scientific testing of the wreckage they get to if you provide input to the n t s b as in why they should need to do the scientific test or why they should do it you're invited to provide self interest self examples and the point is that the law is perfectly correct all you have to do is i would say follow the supreme court's decision with and and you will be far it really benefits anything in the facts and i am i am generally persuaded to help a widow of or you know for a captain of a crash particularly when you know there's a problem at least i think there's a  remaining defend it in the honolulu federal court right yeah and it has nothing to do with it has everything to do with the records because there may be these records on who what kind of licensing they did the don't work for the the agency they're not hired specifically as individuals become work really head for the agency at a goodwill or whatever they come from  international treaty that allows the french and german manufacturers to be at each one of these accidents automatically then it is what i'm going to been describing here we just need a factual record which is wh we can't hear you let me try to tick through as quickly as possible response of points that will incorporate responses to some of the questions that were at least before the end of my time but as as mr job in knowledge b needs these experts there is aircraft specific expertise that although n t s b investigators are themselves ph d s and experts in their fields they can't possibly have all of the knowledge that they need and so these people your honor remember the probable cause determination that n t s b makes is not admissible in litigation so no your honor the fact report becomes public and in fact they want to make this emphasize this point because i think it was a concern of judge duncan's the a lot becomes public in this process i would encourage the court to look at the public docket for these matters the fact report the final fact report that n t s b puts out with all of its supporting documentation photographs data all of that becomes one hundred percent public and is admissible in court the probable cause it is it's both the there is a statute that precludes the probable cause determination from being admissible but it doesn't have that same kind of prohibition on the use of the  and then the regulations provide for a lot of information becoming public and i want to highlight two things not only does the final factor port the thing to go to your judge function to your point the thing that is not deliberative the final fact report the final probable cause report those are public but more than that if these companies representing themselves as you know designers manufacturers of aircraft representing their own interests qua companies want to put their views in front of n t s b and want to submit proposed findings of fact propose probable cause they can do that but those documents become public and that is under the regulations so if you go to an it's consistent with the convention it's because if they're coming in to represent their own interests they're not part of n t s b is deliberative process an internal way and so that's treated quite separately so under the regulations at eighty th fourteen the way that they read at the time that this case was going on was any person or company has employees or products were involved in the accident they can submit proposed findings drawn from the evidence they can submit propose probable cause  what the type of process they're undertaking because that's all a function of regulations and statutes and the convention and we know what the results of their process are because that is all made public what we shouldn't know and don't know is what their deliberat process looks like because that's the the all of the usual principles that exemption five is meant to protect are at play and mr job is acknowledging that these people are playing a key part in that process for their ex technical expertise and that is it  but a few things number one there is not there are a good number of consultant corollary cases but a limited number so for example this court has accepted the consultant corollary and but has just two cases on it right hoover and will so it's not a huge number of cases and what we don't have any cases in which a court has rejected a consultant on the grounds that they were a regulated entity and i do want to just emphasize again that they're not regulated by n t s b n t s b makes safety recommendations but they're not a  regulator of these entities as such now an entity that is a regulator and i think is an important analogy all or something important to note in all of this right f a a is one of the participants in this process and much like these companies they're brought into the process for their expertise and if the only people involved in these discussions were n t s b and f a a nobody would be here suggesting that we have a deliberative process privilege for these documents but remember a has air traffic controllers and air traffic controllers can be responsible for accidents and you can have accidents that are caused by a failing on f a's part to have adequate regulations of entities and so this idea that just one sentence to wrap it up it's simply to say that having an interest cases like mckinley and others make clear that just having an interest is not enough to take us outside the consultant corollary and in this case these individuals are playing by the rules the system would have been abandoned long ago if it worked otherwise and mr job's argument here is aimed at blowing up a seventy year old approach to ensuring aviation safety and that would be really extraordinary and i would urge caution thank you so much for your