such assistance to our courts i'd suggest that congress and foreign countries would not consider what occurred in this case to be effective or worthy of encouragement let me suggest six things which happen one here  american court held an ex parte hearing without any reason one sided argument from hornby never asked why the adverse parties were not notified never asked what they would have said if they had been there and adopted almost other cases that have held in dicta that it was there was a practice to decide these ex parte this case is different for three reasons and there's that you're describing our brief we suffered harm they got x party discovery took your honor they had our records for five months containing personal information about simmo and the companies they could do anything without anything that they wanted with them they could have given them to new york times there was no protective order i don't think there's any actually prejudiced apart from what they could do or what they might have done how are you actually prejudice you had the chance to come back and and and make a motion and and litigate this matter were prejudiced by the mere fact your honor that they had them for five months we didn't know about it there was no protective order in place and they use that information and the ohio state court there's an affidavit from their attorney that they took that information they used it in the ohio state court and we know ultimately when we got in this case the court entered a protective order and only allowed that information to be used in the b b i so there was clear prejudiced by them using information that we never knew that they had and any perceived domestic proceeding in the united states when we all know that seventy two it they used it in the b v i and we don't really know what they did with it the principle of the other side quarmby has the fact that they may have not they haven't found any litigation so it would appear they haven't used in litigation but nobody wants their adversary who's involved in competing businesses to have information to which they're not entitled for a long period of time so that is a it is a why is it yes  if something does something improperly if you're not entitled to get something ex parte there need there should be a remedy for that because if there's no remedy if you just say well i would have done that anyhow then there's no sanction for doing things expo right that way there are all sorts of circumstances even in the criminal context where something happened the way it did but if it would have happened properly in any event the court the law tolerate sit so here you had a judge different remedies one of the remedy that we suggested in the minimum the court should order them to destroy the records that have nothing to do with the dispute over warren steele they have bank records of our clients have nothing to do with the dispute if their claim is that there were improper transactions with warrants deal or how well the given those bank records that's what the judge in alabama did let's not forget every judge who get and the next party order who then heard our side changed the order and ohio the judge stated the discovery before they could serve subpoenas in alabama and this is very important once the judge there heard us she said you know what i'm only going to give the bank records of warren steel and how well you don't get the back records of the individuals you don't get the bank records of the related companies that's really the most important prejudice that we have suffered because they're not entitled to it let them have the bank records of warren steel let them have the bank records of halliwell but as a as a means of addressing what happened whether it's a sanction or whether because the discovery was too intrusive too overly broad that is the most important thing that we're asking the court to do make them too strong give back the bank records that have nothing to do with the companies to which they have an interest and there's other grounds your honor can do that but admittedly they didn't fulfill their duty of disclosure you asked me well should is your church what should you do about that you're going to say well there was no prejudice because it would have decided that any that's not right if you have a duty of disclosure and you admit it lee violated he the judge held well you know that you can't sanction the party that's just simply wrong the supreme court has said if the attorney does something wrong you can sanction the party we all know under rule forty five the duty of disclosure the judge found that the judge said that there were clearly things that should have been told to me that weren't we know that from ohio your honor because when the judge there learned that they couldn't bring new b v i proceedings until they paid that eight hundred thousand dollars judgment she had mutely stayed the stayed the case until they did it they never did and that was wrong too there was a baby on a policy that you can't bring a new case until you pay your judgment from the old what the judge should've never given the discovery in the first place and that's what happened in ohio when she said you know what they haven't paid the judgment you know we all know under the discretionary factors of seven hundred to one reason not to get discovery is because it violates the public policy of the united states or another country they couldn't use the records in the b v i because the court wouldn't of lab the new proceeding to go forward yet and they didn't well the judge said give me a break in ohio she said is so small if he's so rich what a paid the fine but he didn't we actually know what happened the only reason we paid the fine is we brought execution proceedings in the b v i against the shares and they ultimately had to pay the fine or else we would have taken the shares and then hornbeam would have had no interest in and how well but your honor the other issue on the issue of sanctions and prejudice i go forty five we know the cases are legion if you serve subpoenas without notice which is what happened here and then you get discovery which is what happened here one of the sanctions that they give even if the court but has said that subpoenas fine they say you can't use the discovery but we're focused on here your honor is the records that don't have to do with halliwell and warrant steal they should have never received those records it's intrusive it's overly broad they're not related to their dispute they haven't even filed a case anyhow so if they violated the duty of disclosure if they serve subpoenas without notice or if you just find independently which you can do that the discovery was too intrusive all of the end of the day that is the remedy that we're seeking   and reviewed extensively by them on motions by mr simu and in all five cases the order was issued in indeed it's been reviewed by the eleventh circuit the eleven has considered virtually all of the arguments that are being made here including the argument about issuance ex party and has up held the discovery order it's clearly a proper order  this court has held numerous times as has every other court that's considered it that an expert that these proceedings may be done next party is commonplace and it is appropriate the mr marks is asking for a very limited memory which is to destroy the bank records that have nothing to do with how well or word steal and i take it that your response is going to be that all of these documents at least light on the alleged fraudulent scheme that your honor this this issue of the breadth of discovery i would i would break it down into two pieces perhaps the first  do with this party so those are you know not relevant to this case we don't care about them they're never going to be used they are subject to a protective order so they can never be disclosed to anybody or used in any any proceeding the complaint that has been raised by mr sim you know is that the documents that the court authorized be produced is overbroad and we don't believe they are of the  this has been raised numerous times by mr simeon of the district court has specifically addressed the issue originally during the x party proceedings the court looked at the at the scope of the discovery and said you know what this is too broad i'm not going to allow this and require the applicant to revise the discovery request to make it more narrow the judge approved it on that basis and then when mr semi objected to the scope of discovery the court took that very seriously had several hearings on whether the scope of this government was appropriate and properly found and this is tested in his discretion that those documents were relevant to the issues that that were at issue in the potential foreign proceedings and we strongly strongly agree with that and believe that the record strongly supports or i would point out also that the judge was very careful to respect the  potential rights of the foreign parties a very extensive protective order was entered these documents cannot be as as was given to the new york times they can't be used in any way they can't be disclosed and they actually can't be used in any proceeding except the b v i proceeding so the court has been has exercised its discretion in a very careful way after multiple  address this issue what is the status of the deadline for the b v i proceeding be under the protective order of the court has given us until may of twenty eighteen to either file the is attempting to gather documents not just in new york but in other jurisdictions including florida which is a very important place for the documents in this case and because of multiple proceedings that we've had and in florida we have not yet gotten any documents there so we're we're still working to collect the documents in order to file in order to file the case in the meantime we filed the case  the english courts which was one of the other jurisdictions or one of the other cases that this application was based on just briefly address the issue of  the judgment as the court below properly held this is a very large case with a very large amount of money at stake tens of millions of hundreds of millions of dollars between two very well off or three very well off parties and in the b v i there was a cost ascension a cost assessment under b v i law of eight hundred forty six thousand dollars it's not entirely clear whether that would have to be paid before a b v i case could be filed but it was paid and there is just it's it would be very hard to imagine that a party would walk away from a tens or hundreds of millions of dollars case just because he had to pay a cost assessment in a prior b v i action so the district court in this case as well as other cases have considered this issue and determined in their discretion it's a discretionary issue that it was that the existence of that cost order would not preclude hornbeam from filing a foreign  proceeding and i'll just in terms of the rule forty five issue the as as we've noted that issue is completely moot the parties have had full opportunity to object to it but i would point out that there is there's no requirement in rule forty five to notify potential adverse foreign parties rule forty five requires the prior notice to a party and it's very different from rule twenty seven which if you are going to try to take a deposition of a of a potential party there is a requirement specifically and all twenty seven to notify potential foreign party that does not exist and r opportunity to duke it out for lack of a better term and to participate the why isn't this issue whether it's appropriate to proceed export to one of those issues that might  aid with you there have been many many cases your honor involving x party proceedings of course the courts have consistently held that x party i guess there was no if there was no review and the party then comes in later it might not be but it might not be moved in other cases and argument  disregard found that there was no case on point but that if you looked at the overall structure of discovery under the federal rules of civil procedure he knowledge that there was no case that held that in a rule that held it but he thought it was simi wasn't prejudiced from the lack of notice but i don't i don't how you argue to us that you were in no notice obligation when you have an appeal you can you can defend the decision that there was no understandable perhaps you're doing us now to say that you there is no obligation to give notice in a circumstance such as this and i don't see why we should do that when you didn't appeal the ruling i agree with ironic right but i understand i took your point to be that that kind of explains why what happened happened exactly around or at the time that this application was made in th system let your honour's decide that issue one on the briefs but we think it's an important issue substantively in the circuit next every judge there was mr somebody who just spoke this poker every judge who  heard our side florida alabama ohio changed their position once they heard our side in florida the court stayed to discover we still haven't had an hearing on the motion to vacate but the subpoenas have never been allowed to be served in alabama the court did exactly what i said she she did she narrowed the scope of the subpoenas to only the word steal and the how well records that's the only thing that the eleventh circuit affirmed in ohio the court stayed the discovery because she concluded that they hadn't paid the b v i judgment which they never did voluntarily your honor that that proceeding within reasonable contemplation they still haven't the discovery in delaware i mean they actually said that were the reasons that there's delay they didn't serve the subpoenas in florida for a year and a half didn't serve the self subpoenas in ohio for a year and a half and here we are three years later after they immediately notified our clients that there was an x party order we only learned about this through the media so to me like your it sounds to me like you're making the argument that you'll make in may of two thousand and eighteen when they seek an extension concluded when she stated it because they didn't pay the b v i judgment and it was and it was done absolutely no rationale for them not to have paid it if they wanted to get the discovery because they couldn't use the discovery in the in the  me at a point on the issue of the scope of this close of this closure it there's a duty of disclosure they violated the pioneer case supreme court in our brief that's where the the client was sanction because of the conduct of the attorneys let's talk i come to that conclusion it said because you would get notice so that you could challenge the subpoenas they cited that case in their brief in order to get the ex parte order how in the world could we have gotten notice to challenge the subpoenas if they didn't sanction on a be that they destroy the unrelated second rule forty five separate issue absolutely ok they had a duty to serve the subpoenas on this what's the sanction and there's cases we cited in our brief you know whether it's here or here there's actors actual harm because they've got the records the sanction and a minimum ought to have been that they had to destroy the unrelated records let me just add one other point your honor to the question that that you asked me ok unprejudiced the other prejudiced we suffered is we couldn't seek a stay of the order before the discovery was was issued we got a stay from the eleventh circuit even if judge broderick disagreed with us ok if we had had notice and we and we would have litigated  from us because it was an ex party proceeding that we never got notice of thank you very much we will take the