knowledge its impact on this court's decisions the impact of this decision is clear because the district court never had this debate about moodiness it would be helpful if both sides could let us know what is actually already public and what resolve and i assume you agree that if some documents have been made public there's not much we can do about it and other words if there are already out there would can we do so i mean you're free to challenge that point if you wish but my st question just what what is it that you want evidence that's been destroyed or back that's not already public is there something that fits that category yes or are there's a number of things the st is we'd like this court to vacate the discovery order by the district court because otherwise the so you're not answering my question answer my question what is not public already that you want to strawberry or back so we're not asking this court to do anything with records that are in public  the what's what's left is something left yes there were about four hundred and forty six documents that were turned over as a result of the court order sixty one refused to trial the destruction order in the protective order below only applied to the four hundred and forty six minus sixty one documents that were not used to trial the sixty one documents that were used to trial are not covered by the destruction order and were also just up there sort we understand what's going on us would you c but one of the things of them were then what about the sixty one in the ones that weren't introduced is that what's the live dispute well your honor i think what we're asking for is we're asking this court to a milieu the excess of jurisdiction by the district court to the best can and we understand that this quarter will get to that but just tell us what is there some numbers that within the sixty one were like forty introduced in those republican that leaves twenty left we were actually not present at trial my understanding is that there were sixty one of the four hundred and forty six documents that were used at trial it is unclear to me how many someone introduced and therefore not made public that's what i heard you just say now your honor that i'm not sure about because we weren't actually present at trial i don't care you find out from the people that were trial but yeah but i believe six hundred and sixty one were used at trial and those are those are we had we agree that those are in the public record but the protective order didn't require the destruction of those sixty one that remain in the presence of plaintiffs and their counsel was why do we care about their having sixty one documents that are now public your honor let me be clear what we care about here we care about you know the what's contained in not only the four hundred and four in all of the four hundred and forty six documents is strategic internal information about how the are and see the r c c and mr kincaid approach already been made public well what of the information in the three hundred some odd documents that were the case has been dismissed right yet i think it's been vacated documents have been destroyed what are what are we doing here well a couple of the couple of things your honor st we'd like to have a discovery order vacated it's a discovery whate overriding you have to get so it's not moot for us to get there yes your honor and i don't believe it is moot because when you look at two things when you look at vacate or the notion that this decision that overrode our client's assert amendment privilege is still out there and can be held used against our clients in prior in future cases and i'll point out or mostly reverse and review cases that are in this mess or but you want us to do just for a presidential purposes that's part of it but your honor what was reversed in vacated the whole business of being moved to try to live anymore it's a hypothetical controversy at this point well maybe maybe maybe maybe i'm maybe i'm not getting your point is a way of to no final judgment and once you don't get to review that decision on appeal because the moon is under months in where you vacate is that the idea that you have to vote kate the order so we don't have an opinion about right or wrong but we it as part of what happens with vacating the the case on appeal that's that's correct because otherwise this decision can be and there are other cases that involve the r and c of the r c c in redistricting there have been state court cases in pennsylvania and north carolina where subpoenas were issued to national party committees life so much easier for us if you could just point to one document that's not public such as that simplifies the whole thing that just proves it's not moo and speaking only for myself but my experience court of appeals judges of the simple this path and you just want to take us over mountains and through swamps and i'll do it but it makes me very skeptical your honor i'm not asking to take us into  not asking you to take take us into swamps if there was a district court order that ordered coke to turn over its secret formula to pepsi and then a court said you know what district court didn't have the ability or didn't have subject matter jurisdiction over the case in which  or coke to turn over its secret formula to pepsi and a subsequent order from a from an appeals court saying hey pepsi you can't use that information in the future even though it was turned over to the other side would be incredibly helpful to coke that's kind of where we with you know the information about how the our in c in the n r c c approached analysis of redistricting is in the hands of people that have sued and subpoena the r and c in the n r c see regularly in all kinds of cases and so what we're seeking is a vacate or of the order that was clearly in excess of jurisdiction because the court didn't have subject matter jurisdiction in the st place the vacate or is important to us and you know i point to munson where i also point to what the th circuit did gerrymandering case out of wisconsin in that case the three judge court stayed its hand when it understood that the supreme court was going to hear show schedule trial for july allow discovery to go on ordered a deposition of the speaker of the i right in understanding your argument that with all of these documents you're happy with an order that just says this court vacated the underlying three judgment decision in light of  more than just vacated under months thing where because no one had a chance to decide whether they were correctly issued we're asking for more than that but that would that would give us relief here and that's why this case isn't moot before you what more do you want i would think we could enter to all whole bunch of internal information we would like to know who had that information that's one of the it's one of the i can't figure out with this line of argument are you making the point that you don't trust when they say they were destroyed they were destroyed are you making the point they haven't told you who had access to him and whether they destroyed copies is it a copying point or is it a knowledge point it's a knowledge point they have not told us who had access to them all they sat was a one letter that said we've comp we don't know how widely circulated the are in season and r c c is proprietary information was among the plaintiffs and their counsel and their agents all we know is they said they've destroyed you understand i'm coming from i'm just struggling how a court can fix the knowledge point i i feel like a court could fix the copies of the documents point that seems to be church of scientology we can get sacked but i don't really struggling with how we get beyond that are you comfortable on the documents point put knowledge to the side you comfortable that everybody's playing straight up that any copies have been destroyed i am not questioning the other side's counsel when they say they destroyed the documents that were not used the trial copy that they still write but they we  believe that they are still in possession of the documents that were used the trial we would like those destroyed and we would like to know who had the other documents who had access to them again and again i go back to my coca cola pepsi analogy if the district court didn't have jurisdiction to turn that over it would be incredibly beneficial to coca cola to know who it pepsi had read their secret recipe so that in the future when there's other cases and other issues that come up they know who had access to that information simply destroying the document doesn't destroy the knowledge of the people that had access to also and we need this to do with the informations you know joe smith in montana read this you know document three hundred and seventy five and so now you know joe smith read document three hundred and seventy five what happens next and when and when joe smith shows up as an expert or a witness in a future redistricting case where the r and c in the r c c are on the other side knowing that they that they had information from this case would be incredibly helpful and i also want to point out you're not helping a great answer because in that other case it's a very we could not possibly know how why these documents were circulated without the information we're seeking and i also want to play out slowdowns or say sensible things ok but be really helpful you just gave one example knowing joe smith yes i responded by saying if joe smith uses the information and you think somehow fraudulent lior unfairly and that next case a court will be in a position to do something about it ok so that that does not give us a remedy and that is part of the whole article three redress ability give me something else that does not use coke pepsi and talks about these documents we would like to see could attorney's fees and costs involved in the production of these documents and we can't do that without the vacate or from this court to be able to go back to the just report there were tens of thousands of dollars worth of fees just for producing these documents for doing the searches starting with the twenty three thousand dollars that they gave us that were responsible the search terms now right down to the five hundred dollars producing the copies for the court there was actual monetary damages that our clients incurred in the course of this litigation in a case where the court had no subject matter jurisdiction should know this but is there are already a pending fee request out there no because there's no order vacating that what what are we doing here today what have you requested it really i also asked him to forgive me for interrupting but i also thought it was black letter law that fees and costs wouldn't solve an article three problem in  remembering that i thought that was a black letter principle i mean a death in other words if you want to bring your own fees claim later go for it but i didn't think that was what kept a move dispute alive and i'm forgetting something but your honor without vacate or here going back to  answer that question in my forgetting something about whether a fees and costs motion that may be filed down the road deals with the moon is problem today just if you don't know to say i don't know i don't know you're on it so i'm not sure either ok over orders granting or denying injunctions in this case the just the three judge district court granted or dismiss the case it group know the supreme court and the supreme court vacated in a matter with instructions to dismiss as well but in this particular case your honor you know we're rd party here and frankly when you you know when you go look at it in lexus or westlaw at the discovery orders in this case there's no flag that tells you because the later final judgment was vacated by the supreme court therefore the discovery the interim the interim discovery orders are also vacated there i don't know of any case law that stands for that proposition but if there is i would love to know it but we're not aware of that judge god you have any agree entirely it's moot the parties haven't sought anything further than deleting the documents as required allowing appellants to know that as your quick reaction to the months in where point that you know they they did want to appeal this their  rd party they were not allowed to know final judgment and now they can't because it's mooted in some months or says when something gets mooted on appeal part of the remedy is to vacate the underlying order so not party who caused the intervening moodiness which appellants dead by agreeing to the sixty one trial exhibits in the can k deposition becoming public judicial documents trying to appeal i mean it's hard to say this was their fault well they certainly were able to continue to invoke the protective water if they had done so what's the practical explanation for why this order i mean it seems really odd to me to think your side's going to rely on the order vacant or is an extraordinary equitable remedy and it was the norm when something gets mooted on appeal i mean to me and that's what up with the block in u s bancorp justice scalia said just the opposite and said the additional language months in where was dicta regarding that it was the usual practice and what the court looks to is what caused the intervening mootness in order to determine whether or not an underlying order should be vacated or not and that the ordinary course of how does it hurt you what's the injury to your clients of making the order well it's an injury to the public's general interest in the orderly operation of the federal courts and that's exactly what equities and the equities here and the clients as part of the public have an interest in the public documents remaining public about to judge griffin's point if we asked you guys to talk to our mediator if you don't think you could mediate this point i don't i think the case is moot and so there's nothing for this court to do but i know that's what you want i get it this is you know mediation usually  compromise and it's very strange not to have to give something up until i'm hearing you say this is not something you'd be willing to give up even though it doesn't affect your client in general i think the question of moonies should just end the matter and that in bancorp this supreme court said that decisions of the federal courts don't belong only to the litigants one thing i didn't understand of the trial exhibits how exactly that worked at the trial court so you quite often what'll happen is you identify your trial exhibits so sixty one are identified and they're out of the sixty one you care about doesn't mean everything's introduced were all sixty one introduced they were your honor these were i'll admit it exhibits and are part of the public judicial record and no restriction on anyone seeing them no appellants had the opportunity prior to our submission of them as documents to seek restrictions and they expressly declined to do so these were no your honour's and are they still on the record or is that it's all because the reason i ask is i don't think i think you can get access to some of these but not all of them that's what had me puzzled what was going on that's correct your honor if other parties or the press wanted to see them they would have to access through him through the office of the clerk in the southern record and this court in chain group for example has been extremely clear that the public has an overriding interest even in cases where there's no longer any interest in the actual outcome of th interest of the public is focused not just on the result but on the conduct giving rise and it's for those reasons that this court has been extremely protective of access to public whether record itself it's these representations from you or your clients or all of them together so i get the sixty one dollars so there's the th four hundred dollars plus order i guess is three hundred dollars something remaining what have been the rep is representations that have been made about those the representations that have been made about those is that they have all been securely destroyed all of the copies all copies yes your honor because all of the documents that didn't become public traditional records remain subject to the protective water throughout and this court and the other federal courts won't assume that counsel would not comply with duly entered orders of the court and the representations we made appellants that they've been destroyed and to this court submitting them with the federal role  j letter was made with the full knowledge of our perspective responsibilities of candor towards the court and truthfulness towards other parties they show up and some other place people have something to respond about yes r you directed the request making known will be documents were distributed do we do your honor because that is not does not redress anything this court i simple matter of the reach of article three cannot be won or anything that doesn't redress and injury and so well as justice scalia made clear in in the steel company case which we say wow this certain things appellant seat might make them happy or this psychic satisfaction as he calls it isn't acceptable to create an article three controversy and to answer your question what about the problem so making up the facts but you know to correct them only if it makes a difference let's say five people on your side get the documents they then in terms of  letter explaining that they've all been destroyed it's only those five that say they've all been destroyed and what they do is they know the ones they had have been destroyed they then know the people they gave copies they get those back they know they've been destroyed but they don't know and they can't represent whether the people they gave them to make copies and gave them to somebody else so how do you know the people that get copies didn't make copies what where is that representation that seems to be the reason why it's fair to ask who got them because how because you're right the whole point here is you can rely on lawyer lawyer representations and client representation because they'll be in trouble with fraud and all this other stuff but here it's quite possible the representation they want the most has not been given your honor but that would assume that there was non compliance with the protective letter throughout because they were only allowed to be used in this litigation and were only used by the parties listed i know but that would be include the whole say a law firm in the us includes the whole law from anyone working on it including this paralegal and the paralegals not saying i didn't make a copy and if the paralegal makes a copy it goes to somebody else all the people that signed this declaration would not technically have lied the only way to know whether this representation matters is whether you know to whom they were given well your honor each of the support staff for example worked under the supervision of the attorneys in this case and it's from those are those are the only representations that ever could have been made including the paralegal representing to the attorneys that they have destroyed the documents and have not used them outside in this litigation so that means it should be really easy you can of course be required to say who got them because anything that's why is he maybe i'm not surprised you're agreeing with him a maybe but i don't understand what the negative point is all you want to do is you want to representation that no one has a copy ok and the only representations you care about are people who have access right because they're the only ones that could make the copy so it's not so much that anyone wants that they have any right to know every person that has knowledge about it i get that point what i don't understand is why the only representation that would count as it's not about negatives it's about people that had accessed or actually had it not access had physical copies just making sure they didn't make copies that is the representation that we have made in the letter by affirming that we've conducted a search to find any and all and destroying them that's exactly that's pretty much all we would be able to give the court and that the point the judge griffin makes is a listing of who those specific attorneys and paralegals would have been doesn't redress anything because the court operates from the presumption that the protective order was complied with i don't want the list either i just want a representation from everyone that had their hands on it that just makes that seems to be to get to their same point and seems more legitimate i don't believe that that redress is an open injury on or they may want that but  doesn't redress any injury because the documents have been destroyed so there's nothing for this court to order with respect to that judge guy did you have a follow up question or you know i think you have the follow up question well i think i think we understand your argument so thank you very much  are things that this court can do and vacating the opinion below for lack of jurisdiction is important for us i also point discord again to what the th circuit did in woodford versus vos following richo the deposition hadn't yet occurred order by the supreme court actually there was no final order in that case because it didn't go to trial but the but the conclusion of that the conclusion of that case did not enter the dismissal of that case did not of the seven circuits mind erase the that alone eliminates the movements issue and that's why we're here asking you to do that with respect to kind of who might have had our documents there were multiple experts in this case there were multiple paralegals involved there were court reporters there have looked for anybody that had copies but they don't tell us who those people are and that's important because in this redistricting world you often see repeat players covington and burling is in a number of these cases coming to embroiling is here  no because now they're now they're playing out in state court your honor and they're playing out in section two cases around the country and they're playing out in state courts around the country so even though partisan gerrymandering cases in federal courts are gone you're still seeing the same experts in the section two cases you're still seeing the same experts in the in the state court cases you're seeing the same law firms appear over and over again problem is knowledge not document because if they bring the document up you'll be able to say well what happened here someone violated something right yes and that you're you can't be worried about that because we already decided that you can fix it the next case it's back to knowledge and the reason that we're seeking that knowledge is we're looking to this court to police the excess of jurisdiction of the court below here and with that i see i'm out of time with the courthouse that's god you have any questions i think there's thank you all right with thanks to all of you for the briefs and arguments thanks for answering the questions we always appreciate that and the case will be submitted