great thank you very much your honor me can you hear me ok wonderful good afternoon to please the court i'm mark freeman for the government and aspirational i will like to reserve five minutes for rebuttal all right the court has before it today to petitions for writs of mandamus from the united states the errors addressed in those occasions are different and they warrant correction independently but the petition share a common theme discovery in this case has now exceeded all the ordinary bounds of government litigation and especially military litigation and without this court's intervention it's only going to get more extreme the district has already permitted  impression that every time they get an adverse ruling on discovery that they have a direct route to the th circuit and i purple other things just in terms of that that seem to be you know you might want to respond to this but it seems to be that rarely granted i have never before in my career felt three mandamus petitions in a single case we appreciate that this is extremely unusual where there have been many many discovery orders in this case that we think of been unlawful or not supported by the by the government of to quash them in the district in which they were the notices were filed the plaintiff litigated those motions to quash at the cases transferred to the district court in the western district washington litigated without any suggestion that they didn't intend to take those depositions and it was only after the district court here authorized the depositions without limitation and the government said we were going to seek relief from this court that plaintiffs said well actually maybe when i need those depositions right now or maybe ever it was the st time at that point and i think a couple things about that st the fact that the plaintiffs would say that they they may not take the depositions at all then they may choose that they may not think it's necessary is i think pretty compelling evidence that they don't have the extraordinary circumstances that are required to be s under morgan and all the cases interpret it in order to secure such depositions and nd that government should not be in the position of waiting for plaintiffs to decide when in their convenience they want to depose cabinet secretaries with if they've said they'll wait thirty days stay motions we felt because of such different types of relief there but if the district court has not stated those depositions and this court which is to wait to act either to grant a stay or to act on the mandamus petitions and then until the court acts on that motion that's of course proper but just the district court did not say that there was any contingency before plaintiffs notice these depositions that could have noticed them the day after and if the court prefers that we wait until those depositions are noticed and and come back with an emergency motion in this court we can do that but every court of appeals to consider the same question has concluded that a mandamus is appropriate for a deposition to a deposition sought by a cabinet secretary of the united states that every let's say mr f that st yes the extraordinary circumstances test includes as an element of it that the same information cannot be obtained in less obtrusive means that's the reason why we think all four of these depositions ought to be off the table because of course we have two years ago i stood in front of this panel and actually stood in portland and and offered the deposition of anthony kurta who chaired the meetings of the panel of experts and attended the ones who are the ones he didn't share the plaintiffs have never taken that deposition likewise we've offered the deposition of mr d tom de was the dissenting member of the panel of experts filed a written dissent from its conclusions he's the author of some of the e mails that plaintiffs quote in their papers and we said ok if you think he is your key depose committed bad faith that was a finding by the district court now they've walked away from that in their papers but that was the finding of the district court in response to argument the plane just made in district court and as to secretary wilkie their argument was they needed to know whether he controlled information flow or other things that's not it wasn't in any way contingent on getting or not getting the documents but if if mr patten wants to tell us today that they they don't need that those depositions that will be welcome news to us well  were just criticizing them for saying that they don't know they want to take them yet so i don't understand your answer when i was talking about they're not being fair right and look that you don't know that the baseline rule in every circuit is that you do not get to depose a cabinet secretary unless you have extraordinary circumstances and cannot obtain the information from lesser sources now they've made the argument in district court that they satisfy that standard they haven't said maybe someday will satisfy that standard they've made the argument that they do satisfy that standard and the district court found that they do satisfy that standard even given the other things that we've released so that's why we are here on mandamus today because as far as i understand it the plaintiffs could right now while we're in this oral argument the plaintiffs could send a deposition notice to mr to to the secretary of veterans affairs in the united states and that's improper in unjustified i did want to circle back if i may to touch callahan's questions before about whether we are just dumping documents without looking at them or committed or over asserting that the limit of process privilege i'm glad you asked that your honor i want to take a little bit of time today to address that if i can because in our view that is just false i mean the on the question whether attorneys have looked at this case what the district court got upset about was that the d o j litigation team the small number of d o j trial attorneys have appeared in this case have not themselves set eyes on every document withheld as privileged that's ordinary the d o j attorneys relied on documents and assert privilege the department of justice used lawyers at the department of defense to look at these documents and they were reviewed very carefully so no of course you don't mean there was like a twenty dollars and he said book or something that you could included in there it was just it just didn't seem like well i mean i've done a review and then you got in there and you find things that are just riddick where there are ridiculous claims there is a lot of confidence and  clear that there nothing like the volume or even the order of magnitude that the district court said in that just a court filing just two days ago the court said for example i want to give an example the court said that in the eight hundred sample documents that the court reviewed that that ninety percent were  privileged at all well that's because of the district court's categorical legal ruling that all documents outside of two narrow time frames were simply ineligible for the privilege because they were not create a signal to the maddest and carter policies what the district court what the court has said is if we if we submit documents in camera the court will then determine whether those documents are privileged but st we have to submit a personal affidavit from d o j litigation counsel which obviously has the effect of raising professional responsibility questions and deterring what we think is zealous advocacy for our client and nd when we submit those documents even when we did so the court applied the same standard that's why the court in the recent twenty eight dollars a level that we filed found all the documents in there's a declaration the detail declaration filed by bob easton in this case the head of the dia the office of litigation that explains why we thought each of those were properly deliberative and your honor you and i may disagree on some of them on the margins but i that particular statement in the abstract may not be but i do we can look at particular documents if the court wishes but there were in those documents there were draft talking points for the secretary of defense there were recommendations documents and title that one of the quotes if i recall actually says i recommend that you i mean these are these are went to central recommender of documents and my point here is not so much any individual document but that in the entire history of this case the district court has not once found a single document the department of defense to be adequately protect actually protected by the deliberative process privilege she said a handful twenty or so might be privileged but when the issue has been joined when the plaintiffs have said our need outweighs your your interest in the confidentiality and full fair frank and candid deliberation within the department of defense every single time the district has said the plaintiffs get the documents and that's in the phase of discovery requests that ask for draft final reports to the those as to those documents in this case where i don't believe we are serving a presidential communications privilege my trial counsel can and correct me if i'm wrong about that and i may correct this on or on rebuttal but i my understanding is no we're talking about deliberations between secretary of defense and this court instructed the district court to take that issue seriously and in all candor over in the last year that the entirety of the rationale the district has given for why there is no deterrent effect why the policy is that the deliberative process privilege or not implicated is that there's a protective order in this case even though of course this court held in the perry versus what's nigger case that that's not sufficient and even though it's cold comfort to military officers to hear don't worry you're you're honest candid assessments of sensitive topics will just be given to the united states opponents in litigation because or this privilege exists for a reason and we we haven't come up to this court for every iranian's discovery order but we do think we're entitled to have the government's privileges executive privilege is taken seriously in this case and for the same reason we think we're entitled to have the the the plaintiffs pursue discovery from far lower officials in the department of defense if more discovery i mean again and i agree with you on the helpful i'm asking that the court correct three errors and there are two petitions in this case and those petitions ask for three forms of relief the st is to vacate the orders requiring the disclosure of deliberative documents in the absence of any assessment by the number two we think the depositions of senior officials is just classic mandamus and is warranted under the extraordinary circumstances test and number three we think and this is just concede this is the most aggressive of our asks but we think that this case has now gone so far beyond what this court contemplated a year ago where the court said the maddest policy has to be assessed on the record on which it was based and it is turned into a search of the entire department of defense for evidence that this is all somehow a sham even said this is i've only once had it been involved in a case where the mandamus relief went that far that was the in re clinton case in the d c circuit just a couple months ago and there the d c circuit granted mandamus and said yes discovery and it was a case but i you can have discovery sometimes but the discovery in this case has gone so far beyond the bounds that it's time to stop and we're asking this court for the same relief because we think this court too is in the same position because of you the district court that the discovery in this case has gone so far beyond what has been sufficient to enable judicial review of equivalent claims in every other one of the controversial cases that this court has seen temporary protective status the the travel ban and that these are controversial cases but they don't have depositions of cap that secretaries or disclosures of every deliberative document in the department of defense and those are also cases other than the travel ban case in which we didn't have the additional overlay of the standard of review for military decision making in which the supreme court has said the discovery  in there was a claim that is discrimination against women in the draft in weinberger there's a dispute there was a claim that it violated the st amendment on what would have been strict scrutiny in the civilian context in the travel ban context the court will recall there was an equal protection claim in an straight court said it was rational basis review that's true but in so saying so the court also noted that the record from the president gave the rationales it was sufficient for review and noted that it cited the exclusion from the foyer and from discovery of deliberative materials so we're the place we we we are where we are there's a lot of water under the bridge we're not asking the court to claw back the all the deliberative material that we gave the court after the plaintiffs after the district court and the district of columbia's rolling in the dough case that's all the deliberative materials from the panel of experts all of their communications they have all that we're not going to call that back but our point is the district has never stopped and said why is that not enough why is that not enough to decide the question this court laid out in its decision a year ago which is whether secretary mabus reasonably determined that this policy substantially furthers important government interests were prepared to litigate that question and we understand that that dis of this came so i think that i didn't know the st time after mad as laughter that there was other stuff there was other stuff that went on that we didn't really know about the time i'm sorry i mean i tweets in june of two thousand and seventeen before the president's tweets before the president's memorandum secretary mabus was postponed the accession date under the carter policy this is all in the record and he didn't do that just on a whim one day he did that at the recommendation of the service secretaries of the army the navy and the air force and of the commandant of the marines those recommendations are also in the in the record so this was an order organic request from the military now when they say it was rejected what the evidence indicates is that then vice chairman of the joint chiefs of staff silva and deputy secretary of defense shanahan to whom this presentation was given said we don't think this is ready for prime time yet go back and find more data that's what they said that's not the rejection it's just that you're not done yet and the panel went back it met four more times and then the final recommendation which is that it's two hundred and forty one dollars of the agenda is identical in substance to the the court to look at the transcript of that passage in the district court that it what happened was a discussion about what the district was asking why the drafts of the maddest report are deliberative and our counsel for the government was explaining that of course drafts are deliberative even if the substance of the bottom line isn't changing just like what the court might have a draft opinion given to it by a law clerk the final decision may reflect the same substance but the writing is different and we were explaining that yes the writing matters of course council did not say and i don't think any fair reading of that transcript would suggest that the handles recommendations that's what they were this is a advice to secretary mabus the panel's recommendations was the final decision of the department of defense and is just not a fair characterization and again we've argued both in writing before that and in writing after that that drafts of the d o t final report are of course deliberative that's just quintessential deliberative material of a final report that was  by the secretary of defense and sent to the president so and just returning judge callaghan if i may to your question about what happened in this time period so you had this recommend the recommendation to silva and shanahan and they say go back find more evidence there's forty more meetings now plaintiffs have pointed out and they're correct about this that there are not minutes of those meetings and so they describe those meetings as undocumented there's a big difference though between undocumented and no minutes they don't have documents captioned minutes but they have fourteen thousand dollars documents from the department of defense from that december to january time period including data presented to the panel slides e mails among all the panel members and so on and if more were necessary in march of this year the district court ordered us to go back to all of the people who presented to the panel everyone who attended the meeting every panel member everyone who provided any and this is response to plaintiff's interest or a number eighteen and to check with them to make sure that their their recollections are accurate and reflected in the record and we did that we went back to every person and we asked them whether the minutes are accurate and whether the information even from those last four meetings is included in the plaintiffs deposition mendacious response so this is all all in the record and clear and while i'm on the topic another route refrain from plaintiffs is that there was one member of the panel who said maybe the meeting minutes weren't  accurate that was mr de what plaintiffs don't know is that that those that allegation that the meeting minutes weren't accurate was addressed by the panel the very same day and that is in the record and then an interlocutory number eighteen we went back to that panel member and said are you satisfied that these records are accurate to the best of your recollection and he said yes and that is also in the record that's at page one hundred and thirty eight dollars of the supplemental appendix to the deposition petition paragraph eight so this is all in the record they have all of the documents we've seen it is entirely regular the recommendation from the panel of experts was adopted finally by the panel of experts sent to secretary madison and it is i believe it is undisputed in this case that the final panel of at the final department of defense policy tracks what the panel of experts recommend exactly so we have a regular government process plaintiffs are entitled to argue that the their justifications given for that policy fail intermediate scrutiny i don't begrudge them that opportunity and we may well not win it i don't know but the in terms of discovery the case is done we know what happened here and a search for sham evidence turning the pentagon upside down to find any allegation of to your honor they have withheld fifty thousand documents forty percent of the diagnosis that they identified as being responsive to our requests we have virtually nothing for this critical period that date range i don't purport to show this in any of those documents tell us what happened during that period in terms of how the matter's policy was developed and they don't we've been through disasters or been produced what they produce is largely junk very little about what was actually happening what we do we have been finally and lightness about some things like this critical meeting where the panel's recommendations were rejected was from the  eighty one documents the doe court ordered produce top of the iceberg and if it wasn't for that production we never know we'd never know that the panels read recommendations were rejected by the two finding the ninety percent or more of the documents the bay have claimed privileges are not even remotely privileged and we've seen some of those as richard bach and they're not remotely privileged privileged and also it is not true that themes that you assert that you should be able to ask these high ranking officials about the creation of the carter policy which isn't a policy that we're reviewing here happy to address both on the morgan what they decision makers and on and they had just three court found in a ruling they don't even reference let alone challenge that the good faith or other misconduct exception for that morgan bar applies here in part because of this court's decision that the pad is the policy here on his face is discriminatory as well as other of those they don't even reference their ruling or challenge it so your honor we don't concede that what we want to ask mr madison and other witnesses about in fact does call for their mental processes but they do cite a very broad ignition formulation of that from oregon and to the extent that and that is not consistent with subsequent case law but even if you take a very broad expansive view of what our mental process is there is an exceptional plies here that just records and probably of what was applied here in down i guess whether this is premature or not and i'm wondering why shouldn't you just select one of those four and oppose them and if they cover everything then maybe not so extraordinary circumstances to depose the other three why do you get to go all for well we believe that we have a legal right under several law and a fair to take it all for what we've said this again was not correct it wasn't in response to clear long before this position was so immense answer all your questions which i'm not sure anything will answer all of your questions honestly i said the other side i want to and discovery i'm not sure you would ever end it so that be that there are no extraordinary circumstances because you have the information you're asking for or are you saying i've already been granted the right to depose all four of them and whatever those documents show the only person that's going to decide whether w or there's a showing that that official had direct personal knowledge the deposition the exceptional circumstances or satisfy the just report here if you carefully not even carefully parsed to her order she actually in the applying both of these she's found yes the word they were directly involved and that's not seriously disputed the facts are clear and i think to your point  i necessarily agree with the district court on everything on this so i'm not like you know we're not we're not all we're not here all one in the same but that being said i don't want to be a discovery referee either and you shouldn't of these witnesses and their personal recollections as to what happened at that meeting makes their depositions appropriate under so the law so our position is his whole body of case law out there you know the reply brief that they open the door i think there's a pretty compelling case to be made that you've got to demonstrate more than just the man might know something you've got to demonstrate that you can get from someplace else and so your effort to slide by that nd part is disturbing to me well the court found that each of these witnesses has unique personal knowledge and she'd made findings that it couldn't be obtained elsewhere that i would take issue your honor w was what the cases show first they show that in many or most of these cases were depositions or were parties the depositions of senior officials there not personally involved in it in our  study the thesis the clear dividing line was personal knowledge is directed to take those so it's stuck there it doesn't say that personal knowledge is enough you still have the need element which it seems to me you're trying to disregard now i  understand what the district court role but the notion that it's all or personal knowledge by itself is a knob i don't think that's going to withstand scrutiny and i really don't think it was with stand the supreme court and gets to that point  well the court then did the right thing because the district court did not rely on their door she found all of here in our showing was as asked to both your honor but my point is that if you look at the cases it is usually the case that these are not witnesses that they had direct involvement and therefore their depositions not appropriate but where they d and some even suggest that where somebody is personally involved they always he had the knowledge right because they have a personal recollection and an understanding that can't be replaced by another witness challenging exactly privilege but we're trying to get the documents from the department of defense st so and also on the facts again you've got a lot which is is clear here but the facts that show these e mails in store or that show each of these witnesses what is involved and does he have unique personal knowledge as to each of the events we seek to the post of mine is a large carter policy are important because it seems like one way to look at the case is you assume the party policy was a reasoned justified policy and then the question is why did it seems i'm not quite sure why we need the documents from before the party policy if that framework could be adopted yes because the government is fairly quite clear that they're going to challenge in trying to undercut the carter policy and show that it was not well reason or well supported and they've done that with a couple of our hybrid experts who actually participated in that process that's where they selected bill hughes some of the rand corporation and some military knew about but there was not shared with the piano for example so understanding what the analysis the information was that led to do a carter policy is important from  that you can you can cross examine them you can impeach them you can support them you can do all of that and they you know i mean they stand on their own because you're attacking you know the existing policy two working groups because he's only voting member there was a vote and more moran so how is it two groups of people reached the diametrically opposed conclusion just eighteen months apart what many proposed deposition of a high ranking official absolutely we've told him that probably more and i would suspect that there might be more practice motions practice when we do that  documents that they determined were responsible it's just that they withheld forty percent of them in anything they got it if you start with the madness and if we don't think that you know that if you don't start  then if you start with madness it's going to be a little bit harder to decide if you could have gotten it somewhere else we will start lower and we again we made that clear to the other side not the mr freeman but we've had discussions about which witnesses we intend to depose and charted our dates before the pandemic shut us down on that and it became clear through these in camera reviews that there was massive over application privilege going on your orders if i could should quote evaluate the relevance of the requested information and balance it against the military's competency of the interest and that in doing so it quote should consider classes of documents separately when appropriate the dispute that the piano was supported by various working groups and a number of individuals who determine what information and recommendations the piano did in jindo reseed defendants did not dispute the relevance of those fifteen the court heard argument on that and she rejected that quote the problem that i see isn't is just as important what you don't produce to the piano is what you do produce is my position the people who are sorting data you can leave out studies that you don't think support your positions and that's where the plaintiffs are looking for defendants simply ignore them ruling and as to potential chilling effect the court noted in defendants agreed that the persons who prepared these dogmas were not trial to show that the policy passes heightened scrutiny special openings twenty two to twenty three accordingly how the report was prepared what information was considered whether it came from the piano or other sources ar scrutiny moreover during the argument on this defenders conceded that these doctors were prepared after mr me out is this decision to approve the policy and recommended it to the president and process privilege but i think the government said today maybe they'll corrected that they're not asserting presidential communication privilege so if they're not then i have confused about the status of that i thought that we those were part of our  i guess i didn't expect to be back here two years later with the discovery of this so let me ask you does the project going out into the future how we got to stay in place and no progress is being of you're trying to pursue in the meantime so how much longer should we expect this litigation to continue before we actually get to a resolution in the district court that presumably will come back to us no matter how it turns out and that if this court were to deny the nd petition and she can resume looking at documents on the balancing on a category by category basis she's already been through most of those categories and i think that's going to take a whole wide swath of documents and she won't have to go through the in can review because whether those individual documents were ever privilege won't become relevant because as to that category there's been a finding that need outweighs confidentiality so yes so i would guess is that if this petition were probably not and the government was required to produce the documents now they say that is for both of the documents i doubt it but i don't know judge all of those documents and they said if they're in the way i'm not answering the question i recall the frustration when i was in private practice and clients would ask for budgets and timelines and so forth i'll give you all of that i'm just trying to figure out how much longer are we going to have this show going on the road and granted you don't know you won't be committed to this but i'd like some kind that the governments with help in even just of those they redacted would produce parts of them not forty thousand documents this massive invocation is not about protecting government decision making it is about withholding relevant evidence and if defendants are employing this litigation strategy in a case where the government's intent and decision making is directly an issue is the central issue in dispute in desa circumstance were this is our understanding is the same as mr patten saying that the what's at issue at our feet twenty nine is documents withheld solely on the basis of the deliberative process privilege so there are notes mister secretary mabus is personal and it's to the dio do you report or withheld soley on deliberative process grounds they are at issue in the petition so are revisions to that report by the deputy secretary of communications between the secretary and the deputy secretary about that report so those are at issue in this petition there are also president of communications privilege assertions in this case which mr patten says we've not gotten to and that takes me to the nd point i'd like to cover on my rebuttal which is just that i think what we heard from my friend is that discovery in this case is not going to end if these depositions are taken mr patten wouldn't give up even trying to depose the president of the united states we're going to have litigation over executive precor executive privilege presidential communication will have they will say to the district court you know for all i know the fix was in as a cabinet meeting we want the minutes of a cabinet meeting and i think that is what has made all of them with that i mean the predicate you you've got lifetime employment perhaps any way yeah this is taken a lot longer than maybe any of those did before but how does that really hurt the government as well as the policies blames oh it's not that i'm sorry i misunderstood your question it's not the time per se your honor it's it's two things i mean i think the intrusion from deposing a sitting cabinet secretary is obvious but if you just take the documents and know this sounds a little trite but the department of defense takes six stream we seriously the principle that the for tax that they deliberative process privilege protects if you just indulge me for a moment the point of that privilege is to permit junior officers the people who have different ideas to engage in candid debate and share those thoughts about sensitive topics like service by transgender service members and we can all have different opinions about that but what we and of us want to do is use those documents a against the secretary of defense as final decision no they're entitled to show need sometimes but that privilege is very important just as a policy matter through the department of defense to protect the integrity of d o d decision making and the willingness of you know junior officers to speak the truth to senior officers that's a real deal and the largest military organization in the world this is a very important point to them it's why we fight over you know there are documents for example the working group documents that that council reference these are documents whatever i do you happen to these in your are you saying that all right so they're speaking truth to power so power no no it's not going to be that but then if what do you think if they if otherwise they wouldn't say it because then they'll be exposed to being either hamas or this candid decision making and of course in any given case the the decision making is done so you can always say well if you turn over those documents nobody's deterred because that's all in the past but the point is the next time there's one of these processes in a panel of experts and the d o d says all right soldiers sailors i'd like you to tell me the truth what do you really think about this will say well look i don't know the last time someone did an e mail was held up on the th circuit mean that that's not a trivial concerns is very important and is the reason why the deliberat and there are privileges that the military is entitled to assert and we were sort of them here and there's nothing wrong with our doing so ok let me just make sure we've got over time as we continue to back if either of my colleagues have additional questions