responsive to the subpoena documents some of them were withheld however on privileged crowds and this appeal our appeal concerns their effort to withhold d those documents on privileged ground the st point that arises r p o in which we raise below is whether the respondents and here i'm talking about just the funds had satisfied and met the burden that the law in poses with respect to making and stating a claim of privilege under rule forty five  federal rules of civil procedure and this court's case in construction products it was their burden to identify facts going to each of the elements of the privilege claim and that is a burden that they did not meet below and under construction products that those documents were subject to be turned over anyway under under two for two reasons st the documents or substantially all of them were documents that to the extent they reflected privilege information  he should have been entitled to see those documents under federal common law and the delaware cases unless there's a showing open versity and because there was no showing of open adversity below no effort to make that showing those documents should have been in any event that the rd party is acting as an interpreter and if the rd party is merely providing information which is what happened here it is not a privilege and here the the courts below  justified the effort to withhold the documents on the basis that g three m was providing useful information and that is no different than what happened in accurate and accurate held that that was not enough so i know my three minutes are necessary so just two points st the court cases and four hundred and forty five makes clear that it is the burden of the withholding party to provide sufficient information to all the documents to explain why those are invited their response to provide the documents in camera but the sun respondents only provided about one hundred dollars documents selected by them we objected and the point is that in the court below there was well because they didn't satisfy the burden that the law imposes construction products makes clear that the remedy is that the claim will not be recognized as you would have us go through well said we documents on the substantive grounds that identified namely that because the documents reflect information that belong to that advice that was given to directors of the company and the petitioner is a director the court would not have to reach the issue of the adequacy of the law you let me ask you a quick question i mean look the bottom line here is i don't think courts of appeals are typically well suited to get into the weeds discovery request and privilege assertions and so in this case there was a dispute as to category of documents which were i think designed to inform the judge's decision with respect to all the documents the standard here is what abuse of discretion right that's right i will in camera and the magistrate judge made no finding and did not add any legal conclusion or holding as to the balance of the document did not say that he was withhold rejecting this asking us to determine that a director is entitled to everything that the other directors are looking at even when it's a dispute among the directors about terminating two directors determining the whether the district court below had applied the correct law to determine what the federal rule of common law is with respect to one director withholding documents from another and from that for the reason stated in our papers we think this court as a matter of federal common law should follow the well reasoned decisions of the delaware courts which have been adopted by a substantial number of district courts and in fact the only district court decision going the other directions speak to  the ability of a former director to obtain documents in connection with an individual capacity suit and here we're dealing with a current director at least at the time of the of the motion practice who is points in case it wasn't clear st of all all of the documents that were withheld on privilege appear on the privileged blog in the st version of the law that was two thousand six hundred dollars documents the court asked what would the court have to do if it determined that the l inadequate it would have to send the issue back to have further amendments made the log well that actually happened because in the subsequent rounds of colloquy with the court and me in concert over four hundred and fifty entries the very entries that are being complained about now were amended nd clarifying point there was a comment that the court did not make a finding as to the adequacy the log but there was such a finding it was in the court's january th ruling this is the special appendix a fifty six dollars in footnote to where the court said during the status conference the court denied permission petitioners request to grant the motion to compel based solely on alleged on timeliness and insufficien of respondents privilege log the record reflects that the court grappled with these issues extensively during colloquy with counsel reviewed factual affidavits reviewed the log and reviewed documents and satisfied itself that the log was adequate in reviewing privileged logs this court's precedents make clear that context matters and the context here was that a subset of the code every board hired the linklater is firm to advise about the terminations of petitioner and his brother from their executive roles of the company that's the core issue in the foreign proceeding here the terminations took place over two keyboard meetings and in that context when you see a reference to a commute commit commute attorney client communication regarding board meeting with linklater is that is sufficient to permit a reasonable inference that the documents are potentially privileged that's the standard under construction products and that standard was met here to see you have one more minute thank you the nd issue with respect to the director access documents where this court is pressing an open adversity standard that appears not in federal common law but only under certain delaware case it doesn't make sense to apply that rule here it doesn't make sense to apply that rule as a matter for the federal common law but certainly not here there is no dispute about the fact that in certain circumstances directors can withhold documents from other directors when withholding those documents from directors would be in the company's best interests here the legal advice was about the terminations of petitioner and his brother it couldn't possibly be in the company's best interest to show those documents to petitioner and his brother they are inherently conflicted on that issue so the court federal commonlaw properly recognized that documents may be withheld from directors where showing those directors those documents would not be in the company's best interest and that's certainly the case now where the petitioners brother are no longer directors of the company the only purpose they would have for these documents is to use them to sue the company that could not be in the company's best interests that is not consistent i have known for the course ok i mean that there's certainly a lot of time spent in the briefs regarding whether or not this whole thing is moot because the spanish court said they're not interested in these documents are not interested in receiving th evidence and nobody's really spoken about that in the brief but maybe i'll just ask you to respond to what this i mean what are we to make of that well that's respondants argument that's principally argument we don't believe there's any point in allowing access to these documents even if the log was deficient even if there was no privilege because there is no proper use anymore for these documents the spanish court at a january th hearing explicitly unambiguous rejected the admission of any further evidence including certain of the discovery of pain in these proceedings that titian or attempted to use before the spanish court right now that strikes me is sort of a sort of thing that courts of appeals get into that what  we don't generally get into the you know the very highly context specific approach to the privilege log any and camera discussions that that's something that the registry of judges and district judges can do better suited to but that was the finding when i thought this alone may not be admissible in the spanish proceeding it might be relevant to inform the litigation and to inform appeals of rulings in the spanish proceeding specifically the court found below that it might be still satisfy the use requirement because it might be allowed to quote prepare witnesses craft questions and present the petitioners case and it was that inaccurate because the touchstone under this court's precedent is that the evidence be used to insert to be inserted to be admitted into the proceeding and that as a matter of undisputed fact can no longer happen there is no precedent that would allow the use standard under one thousand seven hundred and eighty two dollars to be satisfied simply to allow strategy to be created about a document thoughts to be created about a document work product to be created about a document instead the courts have been clear that this is about insertion of the evidence into the foreign proceeding and that can happen insertion into the proceedings at the outset of a seven thousand nine hundred and two proceeding before there's been an attempt to use the evidence in the foreign proceeding courts do not apply and admissibility requirement because the courts in  don't yet know whether the evidence will or will not be admitted in the foreign proceeding but that is different from our situation where we do know because now we're in a posture where the evidence has been attempted to be used in the foreign proceeding and it's been rejected and that is it exactly the type of situation when courts have found that there is no longer the use there is no longer satisfaction of the use required well this judge wasn't in the the courts to be a declaration though that this evidence was somehow or this information somehow could never be used or never be considered not necessarily have eventually but in terms of the use within the proceedings self  well i think under intel the relevant factor is the receptiveness of the foreign tribunals to the discovery right and the court has the record made clear below expressed we think pretty clearly that they were not not the documents can be employed with some advantage or serve some use in the proceed i'm assuming some advantage seems to be broader than what you're you're describing here i believe that's language from the accent the li case but an accent to light the court went on to make clear that what it's about is the petitioners procedural right to submit the request the document to the magistrate a foreign tribunal must be taken here in new evidence were they counsel we had no way of seeing what it is that you've asserted the privilege against and that the district court agreed with you do we that's correct the dock the in camera documents  g three m where the subject matter experts about the corporations the clients information which distinguishes this situation from the accurate case the other side is urging where a lawyer went and sought out an investment banker who had pitched a transaction to understand new fact that his client did not have so that he could take those facts back and inform his legal advice to his client but here  thank you if i could just start with just by a couple points st all of this does concern a privilege dispute our appeal is about whether the district court plight the correct legal standard particularly with respect the respondents noted that they were provided to g three m for necessary factual input for expertise on the company's structure for verification of factual accuracy and it's not enough to mouth the word expertise to requirement or you don't i'm sorry have one more minute i want you only the information has to be introduced into the proceeding and that can happen through questioning and the court that the spanish court did not rule that the information can be used or was not relevant the spanish court said that that it would not accept into evidence certain documents that's quite a squad as far from what response you're saying and indeed the response separately prosecute appeal which was argued in january before judge sauls and two other judges in which they're saying that the district court below erred in not giving them documents so i don't know how they can take both positions in terms of i did want to touch briefly on timing which is the t