the government describes a somewhat simplistic and inaccurate version of the events in which the genes induced kaiser to dismiss its lawsuit by promising to have deleted the patient health information or ph i only to turn right around after the lawsuit was dismissed and say guess what we didn't delete it now we'd like to be paid and that isn't what happened the government's narrative ignores the distinction between the patient health information that could be deleted that was easily accessible in the e mails and in their files and the information which i'm just feuded the genes actually deleted in december two thousand and twelve and the information that remained hidden space on the computers after deletion both parties knew this hidden data couldn't just be deleted and had to be forensically clean client expert and kaiser knew that as they submitted an expert declaration explaining that the detailed steps would have dismissed the lawsuit because the court granted a motion for summary judgment and told kaiser that amending the complaint would be futile so understanding this background i think is key to understanding why the government seizure of the dns computers  evidence to callous disregard for their rights part of that is because of the agents misrepresent or i wouldn't go so far to say misrepresentation but simplification of the background between kaiser and mr dean in order to obtain the search warrant and part of that at this point really is that the seizure happened two years and eight months ago no charges have been filed the have the computer nothing has happened since the resort filed in this case last year and you know if we were to talk about the merits which i think this court should and can reach once it's been that long the burden shifts to the government to explain why it's been as long as it's got you it's five years so we have another two years and four months and so if if there's been two and a half years or almost three years we could do that if this court were to affirm the district court's decision and it would start the whole process over again result in more delay for mr dean more time the government has all this property and the government is saying well a lot of stuff here investigation you can't you don't want to be right and it doesn't bother us because the government because we're he had committed a crime and no charges were ever filed in this country against that individual the government maintained it wanted to produce the files it had seized to the british government and there for purposes of charges in great to great britain as part of great britain's investigation into a crime that occurred in this court order that the government could keep copies as needed to turn over to the foreign government but had to return the originals to the individual and no charges have been filed in that case and it was evidence of a crime potential crime just as it is here and so that decision  allows this court to do the same thing and to order that jurisdiction was proper and even to go further and say that that the computer should be returned and there was a proper in that case the property was business records it was papers ok's so it's and it was doomed wasn't return it was returned to the this criminal suspect and because the government had a copy i think that's what's critical here is the government at the time the district court proceedings were taking place had already made a complete forensic copy of mr dean's computer and we're not disputing that the government can keep that as needed in case it ever decides to bring charges but it has no legitimate reason for keeping mr dean's original computer at this point there's no contraband on it the contents are not subject to civil forfeiture this is mr dean property and given the length of time that's passed the government has no no further reason to keep it that we didn't  no i'm i'm just saying that this is not a case where normally once the length of time has passed then that becomes the government's burden to show why it should keep the property and there are normally two ways that it can do that one is if the property is contraband which this property is not and the other is if the property is subject to forfeiture which this property is not and so the government has no interest in keeping the original computer at this point it has no need to do so if they file charges against him and convicted him what happens to the property at that point is it subject to forfeiture the property could be subject to forfeiture at that point of that point but at this point it's not and there's they have they have a copy the devices so that the government can ensure the private health care records of innocent kaiser patients is kept confidential and safe they would return what's what's wrong with that offer the government has only ever offered to completely wipe the computer which contains mr dean's personal business records personal files attorney client privilege information and we have to remember that the they can't just wipe off the patient health information never offered to do that could that i think there is a way that that that could be done but but mr dean it would involve an invasion of privacy a lot of these e mails came from kaiser to mr dean's e mail accounts of somebody would have to go this isn't his fault that it happened he's happy to have somebody forensically clean this machines but he thinks that he should be compensated for the invasion of privacy that will occur like you said there could be other personal private information on there that he doesn't has never and would never disclose private patient information publicly he disclosed it to threaten to threaten indirectly as part of an ongoing negotiation but you know to disclose that information would be a crime to disclose that information would be a crime no question if only probably but the bottom line is that the government can't seize personal information to prevent someone from misusing can they continue to keep the computer as they have all the answer is clearly no at least out of the terms of the warrant it expires a year after the investigation is over  the morning honors anthony brown for the united states  almost everything opposing counsel talked to you about in the last ten minutes when this was speaking to the mike yes of course almost everything opposing counsel talk to you about in the last ten minutes was actually not before the district court and is not properly before this court and so what i want to start by talking about is the scope of the legal issue that actually is before this court and also the facts that go to that the scope of the legal issue is whether or not judge phillips abused her discretion fourteen the only basis that mr dean raised at that point for the court to take jurisdiction over his motion was i suppose it had an omission of a statement about whether or not he had won a motion for summary judgment in the affidavit of the search warrant that was the only basis that mr dean raised that that point in subsequent appellate briefing mr dean has raised two additional points which were to be honest the majority of what the court was asking best your honor those two questions judge pious you ask the questions about you know whether it would be wrong what's wrong with forensically wiping the computer that was a question that went to whether the government should be able to hold on to the information or not how long is too long before the government brings a prosecution to hold on to that information none of that was raised below none of that was before the district court these are all issues that have been raised for the first time on this  both back down why couldn't they found the same motion again and say hey it's been three years now and they have filed a prosecution we want to we want to we want to that they could that's absolutely what they could do things have changed things have changed and they could file that motion tomorrow if they want to see once we you know resolve this case here and there's nothing that prevents them from doing that and they probably should have done that and then the record would have been more complete in this case but that also gets me back to what the record is on this case and i want to get back to what the factual record is on this case because judge phillips also decided in the district court that she wasn't going to consider any of the evidence that was submitted in the reply brief mr dean filed a motion and in the record you'll see that the motion has no declaration attached to it it has no exhibits attached to it it has no evidence attached to it it wasn't until the reply brief that mr dean filed any evidence in the case and just to illustrate the paucity of the evidence that mr dean supplied to the district court even in the reply when he provided a declaration and there isn't a single statement in that declaration that attests to evidence to show for example irreparable sorry irreparable injury in this case mr dean never said that there was personal information on the computer he never said that there was business information on the computer he never identified photographs that were on the computer he provided no basis whatsoever for the district court to find that he would be irreparably injured if the computers weren't returned to him there is simply no facts in the record and to illustrate this in highlight it i want to point out to the court that in the opening brief on appeal the opposing counsel couldn't find anything in the record i assume which is why to show that there was evidence for in a wrapper bill injury opposing counsel had to cite to the request for judicial notice and that's why taishan actually points to something as some filings that were made in the superior court in the underlying dispute between kaiser and mr dean which is to say there's nothing before the district court that would support this and we've gone way outside the record so you know i want to ask you this question i read your opposition in the district court just you know opposition you filed to the original motion and in there as i had read you had offered to return the computer if you if you were to let you agree to letting the government wipe it clean that's correct your honor and you say to so that if we can ensure the private health care records of innocent kaiser patients which suggest really what the government's motive was or goal was was just to get that health care information out of his hands it was no no potential possibility or threat that he could ever disclose you know have access to that it sounds like well want to keep it confidential and saying no i think i can put it in context and explain what that means this is the situation your honor repeatedly throughout the litigation with kaiser mr dean swore under penalty of perjury that he had made a  that he had searched diligently for the patient health information that when he found that he had deleted it not only had he deleted it he put it in the recycling bin and emptied the recycling bin implying that he had no access to it anymore mr dean settles the case in september two thousand and thirteen within six days the ink's not even dry on the settlement agreement he contacts kaiser and says oh i have personal health information on my computer we really have to talk about this  on october first two thousand and thirteen this is in the search warrant mr dean forwards an e mail to kaiser's attorney and it's a two thousand and ten e mail that has personal health information on it now if mr dean really had truly deleted all the e mails and emptied the recycling bin he could not have access to that e mail without some kind of forensic tools there's no way that he could have done that so and then of course the search warrant states numerous facts about the way that mr dean approached kaiser with this information that support the allegations of extortion and threats the government is now in the position where to return this private personal health information to mr dean would be essentially to return the means of the extortion back to the person who has proven he is incapable of holding on to it without extorting keyser let me give you an analogy government has now returned all of his computers except for the one computer on which the government down personal health information the government has been in negotiations with mr dean as the record shows we're trying to find a way to return mr dean's computers to him but when the government asked mr dean if it would be ok if we forensically wipe the computers so that there was no possibility that he could continue to extort keyser mr dean said sure you can do that if you promise not to bring charges against me and that's that's just it's sort of a piece with the extortion with kaiser mr dean wants what mr dean wants but he's not in a position to negotiate about that right now now look if if mr dean wants to bring a motion to talk about the unreasonable delay in bringing the charges and whether the government should hold on to be able to hold onto his computer for that long that's something he could do at this point but you know  all speculation this is all stuff that we're guessing about because the only issues that were raised before the district court had to do with the omission of the statement about the motion for summary judgment i don't know if the court cares for me to discuss that or not these people under a lot of pressure think about it you know disrupts the family drops their lives can i suggest that your own like that way so and this can go on that has happened now i'm not sure it's going to happen in this case no  the investigative technique to oh i see i don't believe the government's involved in that your honor well if you think are you suggesting as a governor speaking generally oh well  i i can assure you there's we're not waiting around to see if mr dean will come in and they go it with us or or plead or anything like that you know it i don't have to suggest that the the fact that the appeal is pending  sort of changed the issues a little bit because it's hard to week we've been trying to negotiate with mr dean about the return of the property and this goes way outside the record your honor but i think counsel will correct me if i'm wrong the the last in april two thousand and fifteen was the last sort of communications we've had in mr dean had withdrawn his offer to allow the government to forensically wipe the computers in exchange for not bringing charges so we're sort of all hanging fire on the issue right now  if there is one last issue i want to to to to talk about and that's with respect to callous disregard i think that's sort of the key issue here and mr dean really has failed to show that there was any callous disregard in this case the government went in got a search warrant from a magistrate and presented the facts to the magistrate and then sought extensions of time through december  thousand and fourteen to be able to search the computers so the government's been following the process as it's supposed that sure whether the court wants me to address the question of whether or not the the failure to mention the motion of summary judgment in the search warrant affidavit affects the probable cause determination of what the answer to that is no he said basically what if mr dean as suggested is that we should apply a sort of frank's analysis here and the question would be would it have made any difference if the government had mentioned in the search warrant affidavit that there was a motion for summary judgment  and that it was successful i don't think it makes any difference as judge phillips noted below the case wasn't resolved on the motion for summary judgment and it was resolved by settlement to compromise and then even using mr dean's logic i think that if the information about the motion for summary judgment had been included in the affidavit that that would actually have underscored the wrongfulness of his conduct here because what mr dean the the whole reason why he won the motion for summary judgment in the superior court was he asserted that the settlement agreement under the settlement agreement the parties had released all of their claims everything and so kaiser couldn't come back and demand additional money from him or they could come back and seek a restraining order from him because they had released all their claims having to do with their business arrangement well what's sauce for the goose is sauce for the gander  mr dean was one of the parties to that settlement agreement he released all the claims too and if you take a look at the settlement agreement that's in the record the settlement agreement actually says claims that are known and unknown mr dean is now claiming that he had an unknown claim there was a few chinese computer he wasn't aware of and he's trying to extort money from kaiser based upon that well i think probably the settlement agreement to stop them from making that claim as he goes back into the superior court but certainly it shows that he had no legal basis to ask kaiser for money and an event even if he had the ph eye in his possession he wasn't allowed to threaten kaiser to go to the public in order to get the money from kaiser that was the whole point of the search one well then why would why would why would cause turnover how many records were turned over thousand of them i think i think that over the course of the time that kaiser worked with mr dean they turned over both electronic records and paper records and that there were thousands of records yesterday why would why would they choose person like that  record i think i don't know the answer to have the earlier dealings with them i don't know the answer to that you know what i do know is that they sought to terminate the agreement in about two underlying lawsuit in the superior court ok thank you your honor i don't mean questions i don't think i have just two points i want to make the first just to correct a factual factual misstatement which my posing counsel said that the case between kaiser mr dean was settled in two thousand and thirteen and it just wasn't a motion for summary judgment was granted in august two thousand and thirteen and then the other thing i wanted to just touch upon judge has question about the government saying that its interest was in protecting the the the ph i and it said that again and the answer in brief that page thirty nine and clearly that's what the government cares about otherwise the copy would suffice the government is doing for kaiser what kaiser couldn't do in its civil litigation was to obtain these machines without having to compensate mr dean for it and i don't think there's any question about that and it's i