medical matter to deal with today and this unable to be here today but is going to listen to the arguments and has already considered the briefs and will be actively involved in the decision of the case and offer his apologies for not fourteenth two thousand and eleven discovery work that we have appeal from on air watch torrie basis the errors can be grouped in basically two categories first the circuit court made certain findings of fact without actually finding any facts and did so prematurely  client communications that do not pertain to this case but other matters that are not it with respect to this the parties in this case and even with some of the lawyers in the circuit court all dressed mr juneau six the issue of mr snow six let me back up a minute and actually explain something here mr joseph brought his claims in this case in a manner that created an unusual dichotomy that contributed to the errors committed by the circuit court you're speaking about was dissociated from big as of october first two thousand and seven and seeks from the circuit court a declaration to that effect and all the consequences that go with it in the alternative mr jenner six remaining counts as verified complaint against the and sets forth very various promises against the slot he's alleging mistreatment of him as a member of big so that the economy here is that mr joe six simultaneously both sues big and and this is a artifice that led to some of these errors now this is important understand arar's because what this means is that mr gen six status is inextricably intertwined with the issue of whether or not he's a number of a control group whether or not he's a current member or for not per member whether or not he can request access to certain information whether he does can or can claim that participates in a privilege these are all threshold issues that have to be addressed at all stem from his status as either a member of big or family member why then did you admit that he was that he is a member well let me address that rather because it's we didn't get that the position that and i won't speak on behalf of mr daniels because she represents therefore in the absence of those allegations he's still a member but here's the issue and i know that mr joseph takes issue with this and the circuit court raises as well what is inhibition an admission is something that would take an issue out of dispute in the case and the case could proceed on the basis of that fact being resolved for our purposes we do not have that hearing riders and that's the problem are you saying that an admission can that be used by the court issue of mr genoese extatic as for the entire case from that point on the issue of whether or not he can or cannot participate in the privilege what access to books or records he may have as a current or former member of big could be decided rather easily we've threshold question to be resolved that multiple stages throughout the years of this case and pending for it to be resolved in this context at this time needlessly when the issue of attorney client communications and privilege work product risk being exposed to someone here you're asking the court for the sake of judicially kana me to have a hearing to take evidence to come to a conclusion to make a finding that you admitted in your answer why why why should the why should the court do that when the court is using your admission as a basis to decide whether an app privilege applies and it seems reasonable to me well here's why it isn't because we're talking about privilege if we were talking about the merits of the case your honor i notice that in th zero six brief he actually states that he's judicially admitted that he is currently a member of big if that's the case if that's the case then we can stipulate that right now and mr daniels or clay can go home but we don't have that situation in the context of privilege this creates a very severe risk of prejudice to the defendant so here's why because if for purposes of this discovery order we are compelled to produce eight hundred fifty one privileged documents mr and if he is allowed to maintain in his verified complaint his very first count that he is not currently a member of big and he ceased being a member of big as about twenty first two thousand and seven and if that is the judicial term a determination on the merits later on compelled three categories of documents to be produced all of them are published in all of them by the way were found to be privileged improperly logged under illinois supreme court rule to a one and so it's mr jenner is it a burden to prove that there is some exception to why they are is he does he continue to be a forty percent number as of today after october first two thousand and seven or not count one that asks a declaration from the circuit court that he is not and insists that he was associated and therefore his share  interest needs to be purchased by the company that is the gist of count one under the statute of course once you dissociate the business rights that would otherwise have under the l l c act terminate and that is of course but begs the question as to i was february of two thousand and ten percent thank you but were seventeenth of two thousand and ten your honor and the reason why the court compel the production of those documents according to discovery order was under the argument that there was  the lawsuit was commenced in july of two thousand and nine so from july of two thousand and nine to february of two thousand and ten we're talking about attorney client communications and attorney and work product with respect to this lawsuit and will come back to a higher standard that applies with respect to having to ever being able to obtain this information now this this court's decision and god being laid out the higher standard in the show is a need to be required for someone to obtain access to a twenty quite communications so the problem your honor is that we're talking about attorney client communications here we're talking about a twenty one product there is no reason for this decision to have been made at this point in time and at this struck at this juncture in the case the better approach would have been that that was followed for example in the court that we cited in our in a breeze as a baki decision or on being versus being with us is which is a decision from outside of the way in both those cases where it was clear that the question of whether or not the person's membership in the car in the en in the circuit court we have expert discovery that is remaining but we are on the cusp of summary judgment so one of those we are asking for is simply that this issue be deferred until after summary judgment because it resolves a number of issues including issues that touch upon the representation argument juneau sic has argued here and he's argued below and the circuit court found that the defendants couldn't possibly maintain a privilege as to him because there was a joint representation that is just simply not the case there is no indication that the company that counsel for big and the sakis had a representation relationship with mr giles so there is but the company is not here trying to pierce or undermine the privilege big and it's council right here arguing to this court that the public should be maintained and it is mr to know sic who should not be allowed to pierce undermine the privilege this is a minority member that the defendants began working at first as you know sick and that certain documents included in the defendant's privilege log did not ask for assistance in communicating something back to cat but there had been no evidentiary hearing on it was issues the court found facts without finding facts and to do that were you know you will have to cite any cases that would hold that the court can't make any kind of findings at this stage in the discovery proceedings to determine whether  description of what due process is in this state and what the requirements are and what the test is for due process but the real point of the way i see it is that as you know what the supreme court found there is unconstitutional to make a factual finding without an opportunity be heard it was unconstitutional and the supreme court said that you can't do that without going through certain steps in order to satisfy due process i just i'm having difficulty in understanding the nexus between that  and this case in any way r c the court ultimately found that the lower court should not have found that the statute was unconstitutional as applied in that case without actually having a factual hearing on what its application would that we draw here or is that the circuit court in our case basically found for purposes of a discovery order on unnecessarily and prematurely in our opinion that mr juneau sic is a member of big purposes of compelling the production of polish communications but we never actually had a factual evidence or a hearing on that point a fact was found without finding facts ok that violates due process i guess the question i think the still unanswered is were you ever able to find a single case that you could direct us to that would indicate that the court in the middle of a discovery dispute is applicator to have evidence or hearing before the court can make a ruling on the entity was inexplicably intertwined with whether or not the court had jurisdiction and the player in that case which is what we're urging happen here is that the issue that those two threshold issues be resolved at the same time so the question of jurisdiction in being versus being which was a district in new hampshire case was deferred until either somebody judgment what trial or when the court would have the opportunity to actually have an adventure hearing on the purpose of person status and then deal with the jurisdiction question in th i don't believe that we have the same fact pattern in there as we do here granted but again this fact of the admission of the problem that we have is for the purposes of the privilege which is this is yes this is a unique situation as far as i understand it i just think you're leaning on a rather slender reed when you're coming in relying on and re r c and a case from new hampshire that don't really square up the important mission issue on one hand and the other one the r c case has to do with the constitution ality of a statute where the court has to make some findings so i am having difficulty following your legal argument here i understand why you don't want to give up the back amounts but i'm looking for a little more support in the case law well  even if he is a member he should not have access to the types of a privileged white privilege and work product published doctors that we're talking about but the point of mission or honor is that there would be one thing if we were talking about the merits of the case but we're not we're talking about whether or not privileged documents are produced to someone who may later be determined to be someone who shouldn't be shouldn't be receiving them so that there's a risk there that we can't undo and this is where if i was going to say the balance of the number of reasons number one there are eight hundred fifty one of them but it wasn't necessary because legally there was no reason to because categorically they should not have been produced to mr giles i can only say that because i believe in your brief you sort of child your opponent for privilege we're dealing with the issue of the plaintiff's status or non status as a member of an entity as one that is inextricably intertwined with the merits of the case as well as this privilege issue so there are many summary judgment summary judgment is something that we're on the cusp of and then it would have been far more responsible if necessary to address this issue this was done prematurely it was done the necessarily and it was done without the factual basis that would be necessary to support the exceptional access to attorney client communications and attorney work product and again i would refer this court to its decision in guardian for laying out the standards of what for example a member of an entity needs to establish as part of a proper focus in order to obtain this kind of of information so even if we're talking about the request under the l l c act as a coroner family member and mr daniels will speak to montgomery and it's a fact but even if you're talking about a former member who was asking for access to information for a while there were a number the period that they were a member they still have to make a request they still have to demonstrate proper purpose none of that was analyzed here no that was demonstrated here and there's even higher showing for the types of information we're talking here so  i hope you left you something to talk about yes i believe  period with the parties agree that he was a member because as i will be arguing today giving him access to these documents is contrary to the plain language of the l c act section ten desh fifteen a as well as the only case law and in any with respect to the judge's finding that even for the period when the parties agree mr joseph was a member of big that he is entitled to the materials because there was no expectation of confidentiality or privilege because he was a member of the control group that as the first error is does not comport with plain language of the l c act the l c act provides that former members that make a request for documents must show a proper purpose that the court will evaluate that the company excuse me will evaluate the circuit court only looked at the first half of the signs and completely read outside of the statute the need for showing a proper purpose basically giving to no sec i'm quoted access to bates privilege materials are you suggesting that he wanted them for an improper purpose just the record is there's no discussion of what the purpose was and i think first of all the way that the statute is written it does put former members in a different category where that is part of the plain language of the statute and in addition there's no he is now adverse to big there's no question that he has sued my client and since april two thousand th the the building where big is located has there are also other and she's including t b i once he ended his relationship with the president t b i he was no longer given access to that building it's a separate issue on whether or not he is a member of big and his precious participation that entity but my point is i mean you talk about being at first he was if first as he filed suit you were the first to him when he was no longer wanted on the premises right well see the relationship change between the parties and the fact that they approached relationship facts whether or not he can obtain documents from my client that are are protected by the pool which especially when their work product would wouldn't you think it would be a proper purpose for somebody who is working there as of september thirtieth and is involved in the business in this getting forty percent of it and then a day later he's no  longer allowed there is no longer allowed access to the premises no longer has the job and wants to sue to protect his rights wouldn't that be a proper purpose to get access to the records to make sure that he gets its fair share out of  c potentially there but there has to request for the records and he has to show a proper purpose it also goes to that what constitutes a rocker and under the i'll see at the provision at issue it's not every scrap of paper the company's entitled to it's privilege it holds the privilege as the entity it doesn't belong to any of the individual members or former members and again the circuit court did not do any review of this never which is the exception i mean in the lawsuit there's discovery you're allowed to get the materials that you want to get and if you believe that they're not entitle them because of the privilege you're the ones who raised privilege right that's correct and in this litigation tens of thousands of documents have been turned over we're only talking  very small number of items that were that were put onto a privilege so there has been production sorry to interrupt  wash and how that as a former member of the control group to no six shared in the company's privilege and therefore was entitled these documents s p s s does not apply here and does not reflect the current state of law first as his house did not evaluate only cases by this court subsequent to ask us as to make it clear that it's the entity and not the individual constituents that hold the purple and we have cited in our brief the case of hayes versus burlington northern in addition there's  the attorney represents the company and not the individual corporators even though one of the incorporates approached council to do the legal work for the entity and the professional was a conduct also make it clear that the attorney one representing organization represents the organization itself and not the constituent members and such as in similar cases that espouse the concept that there exists some type of collective entity client that can also potentially take an adverse position to the entities management regarding matters  local versus rogan analyze whether the from the control group members continue to share in the privilege over the materials generated during their time in the control group that found hayes persuasive and that if the only supreme court were to deal with this issue it would find access to  privilege materials and when an individual leaves the control group the circuit court committed when it how that ask yes us and not dexia governs the control group analysis for purposes of access under section tundish  recent cases and in addition to support us supreme court authority finally with respect to the ministerial asian exception we believe that the circuit court erred and not finding that that exception applied here t p i the bureaus and is a master service or for begun a number of other entities that does not keep any documents  take care of licensing they take care of collections hiring attorneys just to maintain they maintain the documents on their system they are the administrative there they have a contractual issue where they perform that function there for maintaining the documents including documents that are forward to as the master service or come right within the ministry of an exception and to that for that proposition we have cited abbott laboratories versus airco and we believe that the search for it and not finding that exception applied that there any other questions no i think we're ok ok if i may time again we are absolutely we're asking that this court reversed the october fourteenth two thousand and seven discovery order and that the matter be remanded for further proceedings to determine genoese its membership status and then also the never eighteenth contempt order be reversed see concerns regarding as you were pointing out the getting at the truth as opposed to applying the reasons why we have a privilege and as you noted it's an unequal balance because the exception is the privilege there's a reason we do that it's because we don't want to look at this wouldn't we like the taylor court said and i think that's exactly what's going on here is that the apple laws want you to look at this wouldn't they want you to a the truth naturally and they're going to apply the doctrine woodenly and when what we need to do is look at the reasons the context why is it that we do or don't want to apply a privilege in any given case and with respect to counsel i don't hear a lot of he was a member certainly up until october first two thousand and seven when he was frozen out a lot doubt ok we know that but what about substantive allegations we didn't hear anything about that he has his percent interest in it all the sudden everybody falls out of love another company is set up that gets all the new business the only business that the original one gets to do is the stuff that's already on the books and his forty percent and the other evanescent up in the air without it said better than i could the point though is that for purposes of the attorney client privilege we have highly colorable the religious claims this isn't a fishing expedition the issue of his membership is very much in play during oral argument i just heard a statement that there's a finding that he is a member and then there's well we have to go back down to the lower court so that we can have the finding that he's a member we've got to give us at least part of that is brought o by the fact that he says i am i am that all right i am a you or i used to be let me just as a white white why should you be able to have your cake and eat it too and that pleading issue because there is a distinction between taking an inconsistent litigation position freezing somebody in a now that's a minority oppression case freezing them in your pleadings and freezing them out with the attorney client privilege is a big difference between that and properly and consistently pleading in the alternative they're very different things in fact i want to get at something the council said he talked about not being able to establish the need for these particular documents i will address that what are the allegations that jim has made on this point about pleading in the alternative here's what he say i don't know if legally i'm still a member i think i gave my express will under the act and under the operating agreement the saki say no the operating agreement has noticed requirements you didn't give proper notice you're still when we say then we were wrongfully expelled dissociated an issue that is kind of in the briefs down below and what we need to is why did the sloc east think that it was acceptable to stream him along and to freeze him out that's the issue that they're saying needs to be resolved in an evidentiary hearing but aren't we entitled to know what the psyches knew in order to have that evidence you're hearing aren't we entitled to know what the role of captain was they prepared the resolution and we should pretend there was no discussion about the preparation of this resolution has been puttering along up here in the appellate court discovery's been moving a pace in the lower court and you're on the verge of having the discovery to the point where you can file dueling motions for some recharge ok but you know putting this aside just for the moment isn't there you know to take his position and maybe stated in our family isn't there enough information there now in the record in all the discovery that has been completed over the course of time for the court to make this determination as to whether or not he is or or he's a used to be that the simple answer is no the more complex answer is because these documents go to that issue the trial court recalls what the current level of evidence is these documents go to that issue even the ones that are just up to act over two thousand and seven well certainly those documents would because those would be the documents on the i mean that's right when he was frozen out i would think we would be focusing most intently on those docking ok for the short i don't want to derail your argument and if you want to go somewhere else please feel free to do so but i would like  the benefit of your take on the difference between the two periods of time that we're talking about up and so you know up until the date that he's still there physically and you know working at big that's one point in time and from that point in time up until the time the captain is disqualified ok isn't that is isn't that something that we should be very careful about in light of the recent precedent mcgarvie case of course you should and my whole point is to say you have to do a the reasonable expectation of confidentiality doctrine there was never a time with this firm caton given its relationship representing one set of insiders and a firm there was never a time when anything that that firm had to say that had anything to do with this business wasn't something that jim could see also there was never a time when they were under a conflict of interest it wasn't until the resolution of the conflict of interest that you could say ok jim is now outside the tent that's the moment at which he's outside the tent and that moment is the date of disqualification because that's the first time to put it in their terms to manifest that intent and that they should continue to do that disclosure of those documents outlier case and in fact i think miller was a simpler case than even the miller court made it follow the law reach sort of complex it does but it should because first of all they dress a lot of other complex issues like the fisher duty exception that's not before the court fifth amendment right but when it comes to the representation doctrine i don't think it was a complex if followed supreme court case law consolidation coal waste management and it's consistent with the case law that came after it the card the case this case you know six is the garden case that is the garden case but not for the reasons they set what happened in garvey is what problems saying i did the right thing they did with what due respect i think that should have done they sent out a letter and the letter said that you want us represent a company we have a conflict of interest and i have to explain the conflict of interest and in the letter safe i says by the way at all all our documents are communications are probably producible and they were right they were probably producible as they are in this case and what happened was the the insiders file chancery court cook county they file suit against each other and then the one set of insiders files a separate malpractise action against safeguard and in that case they want all the documents between caton and its lawyers on that case that's a whole different animal and the court the guy the court made the point of saying the representation doctrine is announced and your is different because those were people external to the firm court do with the argument about the underlying documents the garvey court said and by the way the documents you're talking about in the chancery litigation have nothing to do with your malpractise action had a conflict of interest that was not yet resolved because jim was inside the tent at that point it was until that moment that he was outside the tent it was certainly technically within the temp even though he wasn't getting a lot of communication it evidentiary hearing for what is traditionally missions we don't do evidence and you disha with missions as a matter of policy we know it's a member managed company we know the statute says he has management communication rights it's all before the or we know that the statute says we didn't hear the whole statute just now it says former members and their attorneys shall be entitled to see the documents if a proper purpose shall that means  discretion wise with the former member doesn't lie with the company its just decision in the exercise that attorneys clearly litigation is an issue or potentially proper purpose and what about the records the document had nothing to do with the issues or with the proper purpose so that the case that cases support for the proposition that looking out for your own interests in litigation is a proper purpose so we have a proper purpose that's all judge palmer needed those shows links in the chain of reasoning were enough by themselves to affirm him but he addressed this this elephant in the room this  particular facts in context in front of us in this case is a lot more like a pretty court did something that to be intellectually honest i have to say they caught a lot of flack for they came up with something insiders status is an officer debate between people who are insiders derivative claims this is not a shareholder who buys a share of i b m so that they can do a strike suit when they were never subject to any the common interest auction it's not the common interest option because just like it two people hire a lawyer to form a company anything that lawyer says about the company to one of the persons the other person gets to know even if they weren't there they came down and said well we kind of think that the right to select counsel is going to trump generally speaking but they made the point of leaving the door open and specifically set of course this isn't  they left the door open because they recognize that in the right case this is going to be a different issue this is a case and we've got fitzpatrick the fitzpatrick court went so far as to add a footnote at the very end when they said actually used the term that that so many other courts find offensive when i'm suggesting that this court is that with the exception which i'll talk about if i have time every court in the land would affirm judge palmer in this case because it's not necessary to resolve exactly whether you believe in kirby or you believe in fitzpatrick you don't have to do that because all of these courts would agree that in balance this is these are insider issues and there's a protective order in place and in balance it appears this is a significant issue about who paid captains fees initially new records that would influence them pat refuses to say whether they were paid by the way which would have been coming out of jim's forty percent profit so you put all the stuff together there's one court in particular though that i do i have to say as a matter of intellectual honesty the little too harsh and so i'm not sure that that's the magistrate would do it every other court would affirm judge palmer in this case because of the insider issues jim is in the tent not that it was really necessary to even address the issue on the first part of the other thing about the prior documents ok if you can wrap up short the only other thing i wanted to address was the the notion the one thing on the scale about selecting counsel first of the psyches don't have a right to assert the attorney cli only big to us and this is an awkward thing for me i like counsel personally but i'm not doing my job unless i point out that jim had no say in the selection of curry counsel for the big in this case while it's big taking sides given the nature of these derivative count it will make millions it isn't the best interests of big to pursue this so i think in the scale the fact that a lawyer selected by the saki is has announced they want to assert  situation that is forcing us to have to fight this in the first place this isn't the normal concrete reason why this is such an unusual case because there's normally doesn't happen we don't normally have the parallel universe that we've been dealing with from day one i want to go back to the issue  because i neglected to mention the winnetka bank case that we cited were basically that court in a similar context of the wait a minute that's that's more of an issue of law that's not admission of fact that you can't use that against to decide the issue for once and for all isn't the first time that mr joseph has a job that the system as i mentioned earlier we have repeatedly asked for this threshold question this membership to be decided industry has fiercely resisted it even today he's resisting it and the circuit court has allowed him to resist it i'll give an example and this is in the record at c thirteen ninety seven through fourteen thirteen and i believe the order is at c fifteen thirty seven we moved to compel answers to request to admit of mr to once and for all tell us what is your opinion because he found the verified complaint her counsel mr dosage say that well jim wasn't sure legally what his status was but he swore the clerk that he knew what it was and so we asked him to answer requests to admit he of once again fiercely opposed our motion to compel and the circuit court and the reasoning that was given by mr joseph were opposing it was that that's not a fair question because it's a question of law it's not a question of fact so your honor we have had a situation over and over again of the system being job by mr snow sec where he is taking advantage of these inconsistent positions to manipulate the situation to suit his needs at the moment don't you in your opening brief take the position that it's a question of fact and that the court should have decided it and then in your reply brief you come out with that one after case and you say well no it's a question of luck seems to me or it doing the same actions using your coll discovery or the response to a pleading that's obviously a question of law because that's exactly what mr joseph is taking a position and that's exactly the circuit court allowed him to do in denying a motion to compel so i don't think it's fair for that issue to be used against us for something as important as access to attorney client privilege communications or work product documents and yet when we put mr no sick on the spot ask him what it is pick a side because you know what once you pick it changes what the claims are in this case there is no count one it changes what the parties are big snow not a defendant anymore and it also will eliminate the whole grounds for the disqualification which i want to touch upon like quickly drivelling you can't represent the same party in the same litigation therefore me you must get out we disagree but that the judge palmer thought otherwise and that was the grounds of the swap occasion if mr juneau sic had picked a side we would have had that conflict and that never would have happened so there are real calcified you know six said on several occasions in one way or the other in his argument that jim has as much access to information of big as anyone else well that begs a question of the status which is our whole point council but you know six that several times jim's in tent well but i think he's saying it on the basis that whether he's is a current or even as a former member of the type of l c that you have here that he has the right to that information well for talking what the question is it begs the question of whether he's in the tent when he was in the tent because it changes the analysis it changes the time frame it changes the analysis it changes what has to be demonstrated we have to question what is the control group of big and i would a curse the court to look at the operating grid for big because big is made up of three people it's an l l c it's a member managed l l c but the property remit says two things that are significant one that the actions and decisions of the i'll see will be made by the majority of the members the control group is the majority of the records the operating agreement itself which is section eight point two in books and records in majority of the members not the members but a majority the membership keeper cause to be kept completely inaccurate books and records of the company and supporting right so yes i see this in his capacity as president t d i perhaps but i'm not following your honor as to how that would allow him access as a member of big and he may perhaps physical access but we're talking about his legal of what is his status is he in the control group or not whether he has any right to obtain information for any period of time we need to know the answer to that that's in my gunnery set forth the better view of the law which is that is the entities p and here of the majority of big is essentially its management the operating agreement says as much and finally i just want to wrap up with the practical resolution to this whole issue and i think your honor touched upon it earlier we're at the cusp of summ judgment there was no need to decide this issue for a factual or legal basis for the purposes of a discovery dispute and again documents that in the ordinary course of opposing litigant would have no right to access will product that reveals the mental impressions opinions or trial strategy of attorneys only discoverable upon a showing of in possibility of securing similar information from other sources again there has been no showing whatsoever of that in this case much less an analysis of it by the circuit court so given the unique situation we have in the type of information that we're talking about this isn't your routine discovery issue again we would urge the court as a practical basis to reverse the decision of the circuit court send this back and to address it charitably give you a minute you need a little more will be charitable thank you i appreciate it i will try and be quick just a couple things to follow up on the discussion regarding the judicial admissions the winnetka case that is recited in both the with respect to the l c act in the operating room and that at aventura hearing has never happened for the court it is undisputed that his membership status still remains actively in dispute in this case i also wanted to follow up you know biggs role in this appeal here today the reason why we have appealed is because the entity is here seeking to protect its privilege mainly because the person trying to pierce that privilege his status visibly the entity is an active dispute at this point and the harm to my client the entity if the wrong decision is made prematurely cannot be reversed as a court mentioned in doc's yeah i cannot under in that for my client if the documents have been shared with an outsider but we don't know what his status is as we suggest exists here you've got you're saying that if we give this these documents up then that's it forever we cannot ring the bell but there's a protective order that's correct the protect the border right border doesn't do anything no the protective  handles the treatment of the materials within the proceeding it so off this matter but it doesn't go to the fact that the documents were shared with someone who's later found to be an a stranger to the entity it can scrounge for potential labor by mr joseph and third parties outside of the litigation and i don't think that it's officially protects the entity at this point and again to reiterate the arguments today there's no need to make that decision today the potential harm is greater and i we can decide his membership status at this point and that will drive what happens if anything after that decision is made it is not a decision that needs to be made today i'm so one thing is here to protect the privilege of the entity second of all derivative in the nature of mr rivet of claims and that it's a benefit to be anti there is no way that mr genoese a can argue that the only person that would benefit by is a rat derivative claims which by the way require him to actually be a member of the entity to make those with respect to the protective order mention is to go back to that issue excuse me there is a protective order in place now in this particular case that's been amended with the request in part by mr juneau sic that materials that are produced in this