eve versus it'll send an out man please the court my name is daniel levy and i represent mr b v a and me i'm before the district court and on appeal the present state of affairs with the litigation going on outside the united states is that the singapore court of appeal as accepted mr bouvier's argument that singapore is not a convenient forum there will be no the occasion going forward in singapore and they concluded their opinion saying in light of our decision on form none can be and it is now for respondents to choose therefore that's a paragraph one twenty five n one twenty six of the singapore court's opinion which it was submitted by the i believe in their twenty eight jail in their top twenty in jail letter they said proceedings right correct to here so he has no pending claim for damages but i don't understand why that is necessarily so why a claim for damages needs to underlie a seventy two claim and the absence of applicant must have a claim for damages they must however bissett be seeking some form of relief and in this case but where does that come from that comes from k p n g and me where this court has held that in order for document the discovery to be for use it must be employed with some advantage or two and she to increase the applicant's chance of success words with some advantage really don't necessarily imply a form of relief particularly on civil or country they are in fact people with a formal role in the mommy guess proceeding but they surely are their civil parties they can submit material to the the monaco judge but what that means is not that they have the additional words that the court has used in knees and came p m g is so to increase their chance of success which doesn't apply and since the way the monaco's procedure operates is they can be heard in that action and they they have a formal role they have an interest in his being found liable convicted whatever in the procedure and they want to put forward documents that help achieve that goal why is that a reasonable way to look at this because it doesn't the only unique interest their interest is identical to any other person's and they're often cases which parties have overlapping or even identical interests so what they have an interest and the court will hear for sure they're interested parties and they may submit information to the monaco judge but the their ability to achieve success is no different than just then anyone who has a claim that someone else committed some crime because they're not seeking any particular remedy they're not trying to remedy i don't follow that let's let's flip it all round right let's imagine that seventeen eighty two was a french statute you had a french individual who was the victim of a crime here and wanted to proceed in france under the french seventeen eighty two in order to make the most persuasive case as a crime victim on the sentencing of a defendant in a u s district court no different right judge but it's not for use because there's simply no measure of success that they can obtain they have given up any remedy that they could otherwise seek and they only harm that they have advanced  they view as more favorable all things considered to their position whatever it may be but that's no different from a crime victim here who shows up at sentencing and says don't give this guy twenty years give my life they have not they have not advanced that as an argument in the monica proceeding they want to see mr groovy convicted and by the way they're entities there because they've because they because they caused mr bouvier to be arrested and as part of the monaco criminal case they were able to insert themselves as civil parties in order to seek damages i just think  interest because they are the frauds i don't i don't understand how they act not be in  no there is no use to be had beyond simply obtaining damages that's the only remedy that they like to show the use reports from it is because they waive their claim for damages and they have no they're no longer seeking damages and so there's simply nothing that they can obtain other than some form of justice which is what they claim they want but that's not sufficient to distinguish them from document relating to those two pictures the police already had it judge firm and granted the petition in may of two thousand and sixteen with respect to that discovery later when he granted the absolutely the text the text indicates may order to give his testimony or statement or to produce a document or other thing for use in a proceeding suggests that it only comes into his possession if he can satisfy that if we were to find that he satisfies it with respect to monaco why is there any right to limit wearie can use it i mean the presumption in the law is that when someone is it unlawful possession of evidence they can use it wherever so if it comes into his lawful possession because they satisfy the requirement of the statute with that someone could use requirement exists in order to ensure that you only get it if you satisfy you still going to be in my hypothetical they're going to get it because they satisfy you with respect to the monaco proceeding now you want to limit them as to where they can use it i mean there's precedent that rejected that when the other use was a u s proceeding so i understand that's not a foreign proceeding but the statute doesn't seem to be eight here's where you can use it proceeding statute it's a statute that requires use to get it they've got it if they get it from monaco why why are we concerned after but firstly because in singapore there is going to be no more litigation  sentence of seven hundred eighty two a says that to the extent the order does not prescribe otherwise the testimony or statement shall be taken and the document or other thing produced in accordance with the federal rules of civil procedure now it's almost too obvious to state that in the absence of a protective order which can be granted generally speaking only on a showing of good cause documents produced in discovery in a federal civil proceeding or fair game for whatever use litigant who gets the documents wants to make it right but that can't be the manner in which the court is interpreting the text of seven hundred eighty two because it only applies civil procedure govern in all cases speak to any limitation on use in other tribunals besides the one that supports the order except that it does in the sense that it does not necessarily say it does not that we if we have jurisdiction over the party we allow we require the party to produce relevant documents wherever it's got the ok that's that's federal of civil procedure sort of  and it does not reach documents if you could show that all the documents were brought but we are in one of these situations where you know some of the documents here some of the documents or some of the documents are in cyberspace suggestion in sario that there's good reason to believe that seven hundred eighty two does not reach documents located outside the united states and the statutory scheme the courts that have ruled no holding a by this court you've got at best  split in the southern district you've got contrary decision in the eleventh circuit your summary of the state of the law on documents outside the united states i suggest is perhaps not accurate and in any case look at the chaos adopting such a point of view would create by creating incentives for american companies and american citizens to hold materials off sure to keep them beyond the reach of seventeen eighty two more over the nightmare in dealing with the question of what is the s and that the district court made a determination which we would have to find is clearly erroneous that based on the representation of counsel that the relevant documents were here so that these did not object to producing them and he didn't really get into a detailed explanation he called the question that he said that questions he deca demick based on this record is not correct that the district judge did use the phrase seemed academic and didn't make a factual finding on this and relied solely on southern be silence  but i think in order to grant the relief requested by appellants the court would not have to find that this was clearly erroneous we submit that the law is that seventy two does not reach documents located outside the united states they take no position on this question one way or the other it doesn't seem to me that this is a case in which we should be hearing you about this for sure that we submitted it's perfectly appropriate for mr to raise this question because relative to determining where the documents are the point that your honor made nondisclosure that's the contracts themselves for example they all have confidentiality obligations in them a various sorts some are governed by you or are we talking about a contract that might for the sake of argument you know have a governing look laws in this case we argued both that confidentiality obligations and contractual confidentiality obligations and foreign statutes that foreign data protection statutes what your honor of virtue is blocking is that it was a compulsory process trumps a contractual agreement between two private parties pending are but over ruling of some other country because they want documents to be produced under seven hundred eighty two to be used in some other country it does not promote the interests of seven argument in either the monographs court french courts that the materials cannot be used because wherever they war they are subject to these limitations but i'm not sure why and unless you make a greater showing then you some of the some of the agreements under seal to this court we'll happily do it well a court that decides cases on the record that was made in the district court we're not going to have a factual hearing as far as i'm concerned i was only responding the to pursue their damages claim and because we submit that that's the only form of use a mere interest in seeing some someone convicted on these facts again we're not talking about some other cases we're adding a case in which the court the foreign court has them has given them an a recognition as a party in the litigation is locked they've been recognized to have the ability to submit evidence in the proceeding but that does not mean they have an interest in the outcome of the proceeding because because there are there are no pending claim for damages we would submit that now the defendant the apple is or submitted are confronting a choice they have no claim for damages in monaco and they've said they're going to pursue damages and sitting here today mr moviefone has no idea where that's going to happen thank you and may please call what this is a perfect case to seventeen eighty two it's right there on the strike zone right in the wheel house and it has some aspects of it that make it better than other cases in the aspects that we haven't talked about the documents have already been produced they've already been used in the form proceeding and the district court put together a very careful protective order that deals with the issues of confidentiality that also deals with the potentially used for other proceedings section five point two page three eighty six of the appendix actually says that if we want to use those documents in another proceeding we go back to the district court and make an application which be similar to another seven hundred eighty two so those facts alone make it uniquely good to be sure and just and all the documents that the documents will be commented on and talked about in monaco beyond that and in paris in that proceeding beyond that we have no right under the protect order to use them we would have to go back to judge firman and make an application if there is not a proceeding singapore's out of the question now or those not dismissed that state depending on what happens but if and when there is another proceeding and if we want to use the documents we would make an application to judge from in the piece that is not moot if and he is exactly what if i understand you correctly it's moot as to monaco not because you have the documents and you've used them yes and that's part of our problem too in terms of that we we should though that this record should be affirmed so that we have the right to apply to the district court if we want to to use it in other proceedings for other purposes so the may relate to other cases is that a lawyer you know it's a law anybody appealing from that no no it's not an issue on the appeal  protective order does not allow you to use them in any of the proceedings right you're allowed to use the break proceedings correct so you would need to go back to the district court and since that seems to be whether you'll ever do that seems to be speculative i don't know why we should wall on something that's otherwise moot so i mean i think you better tell us why france is still still a viable matter in dispute between the parties that subject of the france forsee very happy us a question around because mr bouvier had made his own seven hundred eighty two application to the judge coat and they asked for everything as well for the paris proceeding so that there is an element of a stoppel involved here it was given whatever was called for there was a negotiation with the judge there was one particular transaction that he was interested in he was only talking about an art dealer here who knew and had information and took a deposition of him are those all related to the two transactions that are the subject of the french air french  proceeding no i don't think so but more than i don't think so doesn't help us i mean if you're if you're able to say to us look he's put evidence in the french proceeding about other sales and other transactions and here is the evidence of that that's one thing but i don't know that that was apparent to me from the record part of it is that not everything is public in these investigations and we don't know everything but more than that we're talking about to my question what are you going to use evidence that pertains to other transactions how are you going to use that in the french to show the nature of the fraud how it was accomplished how it works  a that they got out of his hands into someone else's hands whether that's a combination of fraud and theft or one of the other the you were sold these paintings and right at your client and represent it is as if they had come into the hands legitimately at the other dot the other artwork there is not a question of whether the mr bouvier had a legitimate claim to it but that he represented to you that he had purchased it for a higher price than he had correct ok so what you can argue to the french court about these other transactions and how do we know you are going to be reason to think the french court will take that yes absolutely based on i mean again i'm looking for where in the record we have that that's not in the record there are conversations between counsel for the parties typically you don't have that typically when it becomes relevant as to what would come in and the french court or court of another country is that the point of resisting disclosure endeavors to show that the country in question would not hear the evidence the party seeking disclosure to be prevails on that element in the absence of proof the foreign court wouldn't hear it but let me approach this mutinous question in a slightly different way to make sure i understand let's start by putting france to one side ok and i'll come back to it if we conclude that it's certainly moot as to singapore because that's history used to say it's moved to monaco because it's already been used now typically what would happen if that was all that was involved is that we would i to utilise the clear about what you mean a stay from this court yes in december this court issued a stay of the this are going to stand but i just want to clarify is between judge from ins order restricting you from using them elsewhere and the state by this court but if this court if all that was here was michael in singapore and we concluded that it's moot for the reasons i just ad didn't appeal from that and that's the way would go isn't it right if there is no restriction on us using the materials that would be fine you would be a happy camper yes and since he didn't appeal he would be an unhappy non appellants ok so now let's get to the french proceeding the only thing stopping you from using them in france is judge from ns order restricting you from using them without his permission anywhere oh no what's stopping us in france is to stay previously issued by this court in the summer because a judge from and did allow us to use it in the three jurisdictions ok he said monaco singapore and france were ok one isn't the whole thing moved because he didn't challenge judge firms who are restricting to the three hundred some misunderstanding something and the whole case i'm just trying to work through the l yes here's a question on the france proceeding no i understood it pertained to whether he waived at argument in the district court right correct ok and that was because the did the district court thought he is failure to object at the october nineteenth conference or in the initial round of briefing wait disability to raise it he did try to raise it after that right and the district court was not persuaded now it your understanding that this appeal does challenge the district court's allowance of the use in both france and singapore it's not just limited to monaco right be appealed that's what the don't think there's anything in the record at all that justifies bringing up here and we ask you mean if all the documents were in a foreign country if you went to some piece and asked them for all the records they had kept in engl taking advantage of the fact that we have personal jurisdiction over so the beast and this country with no interest in this litigation would order so the beast to get their british documents and give them to you is that how you understand seven hundred eighty two operates yes you're  and what's the basis for that because there's there's some language in cases that suggest that that's not where it operates that's not how it operates i think some points to judge kaplan brought up in terms of cyberspace well that's different i'm suggesting i asked you a question about we know they're all in you know the files in london you think seven hundred eighty two lets you use the united states proceeding to get those documents yes because of the purposes of seven two in terms of the policy that we're supposed to cooperate with litigants from foreign proceedings and the hope is that the foreign courts will do the same to litigants here when they have to go to a foreign very simple matter for seventeen eighty two to have been drafted in such a way that would read essential as follows the district court of the district in which a person resides or who or is found they were to give his testimony or statement or to produce any document in the united states within his control and it doesn't say that so this is one of the look you know i love seventeen eighty two and the default position is rule forty five and the  result they want to continue and seek damages against mr bouvier they're going to have to go somewhere and it is our youth i question even to the extent the documents have been produced and are now before the monaco poor relief  the basis of those documents what they mean and what conclusions should be drawn is an entirely different matter but but back to the point about for use that if you're if the court looks at the singapore court of appeals decision from some weeks ago what it says is swiss law applies to this to this dispute and the stis was form is available and what what we're actually is an action for damages right her correct so the court with the damages actually saying we're not the right form if you want damages go pick someplace else it doesn't say you can't be a party in a different capacity in other actions and that's what we've got it absolutely suggest that if the police go to switzerland in order to seek damages that mr bouvier will be well within his rights to start this all over again because they will have actions pending in monaco and in switzerland and how  any of that limited our seventeen eight q decision because the monaco proceeding is sort of hanging on for dear life because the apple e's cannot get damages in monaco and there have going to have to go somewhere and if they go to switzerland mr bouvier is going to argue you can't proceed in both monaco and switzerland and as a result you shouldn't be able to i is that i mean the monaco proceedings a criminal proceeding against him why can't they seek damages in some other form because mr movie i will argue that there is another action pending they are still parties to the monaco criminal proceeding i know that seems like an odd bird for us lawyer but that's the manner in which the mongo housing allows them to pursue is that any not be able to proceed into courts on in effect the same case at the same time the fact that you say show what supports that view the the international doctrine of least pendants which is cited in the singapore chords opinion  paris one twenty five to one twenty six and they say mr bush remains will take a different view if they do that they do but the point is the ability of the police to proceed in monaco is highly dependent on going somewhere else and if they go somewhere else they  will have they're not seeking damages in monaco they want damages they're going to have to go somewhere else they've said in their twenty's they have to go somewhere else so that we have that circumstance but that's not the circumstance we have today the circumstance we have to gaze there's a proceeding in monaco they have the documents they put them to the to the courts in monaco and i'm not sure what relief you want you say prevent them from know what you're asking us to do seven hundred twenty seven to twenty one workers not only been satisfied the documents have been used in the farm proceeding but they've been submitted and now the police want to advocate on the basis of those documents and cannot do that given the court's stay and we submit that the they shouldn't have been obtained in the first place and therefore that they should no longer be able to use them anywhere if you can imagine what ever happens when we decide this appeal the state is history the state by this court correctly it's a stay pending appeal direct but the route but the relief that the court can grant is to but that brings me to where i want to go we don't hear initial application to now make a further word about what they may or may not do in the monegasques court kim you might have the right to go back to judge firman maybe and ask him to enjoin them from speaking about the documents in a court in monaco and if you lose maybe you'll come back up here but we don't do that in the first instance do we we don't have any thought to do that if the court is not harmful deciding that sort of further limitations then that is the reason that we asked for an alternative form of relief which is to remain and police have said they're going to pursue damages and month after the court entered its order granting the petition because that was when the protective order was largely resolved and or at that point in terms of preclude complying with the order while you challenge we were engaged in discussions with both the district court and the parties about the nature of the protective order you never saw to stay from the district no we did we did  stay pending appeal we absolutely did after or before the documents were turned over by some before and what happened the district were denied our stay pending appeal and we immediately sought emergency for a leaf from this court the court granted it with respect to it and what turned over the documents already i believe that in connection with the argument on the stand police counsel indicated to the panel that the documents had been produced if i could just clarify there was some question during mr hornstein is argument about the nature of the paris proceedings and i didn't want to just thank you very much we argued before the district court that the documents concerning pictures other than the two at issue in paris were irrelevant and therefore they could not be used in the paris proceeding if you argue that we argued that before the district court it didn't  several days before we wrote to the district court petitioner should under no circumstances be permitted to use any discovery obtained as a result of the subpoenas in the paris proceedings it's at page eight page three sixty s raise this before october nineteenth and if you didn't what's the justification because the district court thought you should have it your failure to do so waved it on in the judge's october fifth opinion judge firman in footnote two said the paris proceeding is no longer relevant no longer relevant and he pointed to his having granted relief with respect to two pictures at the same time it declined to limit the reach so you know and declined to limit the use of the discovery to the mako proceedings that's at page seven of the special appendix correct and so in october you knew that it was not going to limit the use to the monaco proceedings which is exactly the reason that before the court entered an order permitting the documents to be used in paris we wrote to the judge and said petitioner should under no circumstances be permitted to use any discovery obtained as a result of the speech in the paris proceeding october nineteenth because what the judge was asking us was forget what arguments you may have made i'm going forward and i've ordered the discovery and you can reserve whatever rights you would appeal and so we said in light of what you've just told us which is your granting the discovery we have to deal with the parameters that the dish report has has set out but when  is made aware of the parties opinion before entering the relevant order the party has not waived the argument that page eighty three sixty six of the appendix i did want to make make sure that the court understands what mr bouvier did exaction with paris we did seek relief under seven hundred eighty two we obtained relief with respect to one painting a modigliani painting from judge coat it has no relevance to the paris proceeding and we did not use it