scheduled for tomorrow the second thing is i want to apologize for my voice i diagnosed a partial order or mild learns right so if you can't understand me or you can't hear me please speak up and i'll do my best to convey to the court my jurisdiction and i believe it's very important that perlman be addressed by this court and the reason is is that it isn't just this case but it's the president that will be set by this decision in that if the court or the government is allowed once there's been a decision as there was with judge windmill that program did not apply and we then file a notice of appeal if the government is allowed to  file a motion for an order to show cause and contempt then that will just totally void perlman because the reason of course is produced back door effort by the government would be that most people who would be in the position of mr thorpe when they are presented with the when they're in a permanent position but yet they're presented with the option are they going to comply or not to comply most people are going to comply with the subpoena the information has got not the information the documents are going to be provided and then the issue's going to become moot under perlman simply destroy the doctrine the second issue that i want to talk about briefly in my opening remarks has to do with the the immunity the work product community docking it applies to documents as rule twenty six and it talks of the end rule talks about the purpose in the preparation of the docket i believe it's important for this court to note that the investigative request for information request excuse me in june of two thousand asked for as the title suggests information and that information was provided also i would point out that the the a o seed it was entered in august of or agreed to in august also provided and for information and information was provided to grand jury subpoena that was issued in this case brought about the production of over three thousand pages of documents and in the a l c i would draw the court's attention to page fourteen thirteen fourteen which deals with paragraph six point one one six point one three and six point one four which express fully a provision that was expressly negotiated that all privileges were reserved in connection with any john mccurry representing ponderosa i understand i have ten minutes distribute those two are whether or not i was retained by the ponderosa to handle all environmental matters and eventually our lives and nationally i was retain because there was investigators and federal officers at my client's house at the at the house of the principal officer in my client in other words evy a and it's criminal division were coming out hot and heavy they had obtained a search warrant they were ready to serve the search warrant and they wanted to interview the principal of ponderosa i was retained at that time to defend ponderosa they had no idea whether we would cooperate or not cooperate we didn't know whether the government's case was good bad or indifferent i think that's one point missed the second just concession which i believe is not of substantial import is the last concession and that is well what if you know what tourney had been involved in this process and by process i mean from the beginning to the end of the day the criminal investigators showed up till the time we completed our work under the administrative order on and sent that process what if no what fernie was involved that was a hypothetical question the judge posed to me judge windmilling when i heard it i thought he wanted to know whether or not there had ever been an environmental consultant privilege and acted and i answered no but it's a hypothetical question it's not the type of question you're buying an attorney to it's not a fact question  that's the withheld documents the critical phrase he used that was withheld documents that ponderosa and ellis for sort of privileged over were prepared at counsel's direction my direction to comply with the information request statutory information requests issued by the second is that my client relied heavily on the withheld documents again that key phrase to respond to that information requests the third suppose that concession is that ponderosa could not i believe that there are there could have been separate attorneys to respond to the information request but i think that the key issue is that what it had given separate investigators because i have no idea where the ponderosa paintings general motors you the local grocery store in terms of the size of the economic impact but what they have avoided by having hiring you to do your internal the information and the documents that mr porth generated privileged and so i think and what i'm trying to say is well it would require ordinarily they would be w yes he was there's no question the facts support unequivocal a that he was hired and nationally not on what may twenty fourth two thousand but on may thirtieth and may thirty one two thousand and then confirmed in a june seven letter he was hired to help defend the corporation but my point is that would have needed to separate investigators and probably more specifically and environmental investigator and an environmental compliance officer the compliance officers documents would not be information and  that is work product and the information used to answer the information request is there a bright line that jumps court decision which we recently cited to the court provides some guidance to and that a difficult area where you have information that probably serves dual purposes it might be relevant and related to the information request but it's also gathered any anticipation of litigation and what what that case discussed is is true and i believe it provide guidance for the for the application of the edelman decision two criteria that need to be looked at in order to determine when you have a document that my serve dual purposes should it be protected or not and those two a privilege over the substantial reason the factor for generating those documents was to prepare for litigation and and let me explain that answer and information request just have to get the information that's asked and you're done on by selling more and identified with specificity each and every leftover or bone pile related material that is there and it identifies the container the visible condition the manufacturers name the trade product name the product numbers right on down the line why did we give that information to e p a because we promised we agreed to give that information to e p a so in response to the information request but if we were we under an obligation to go photograph each and every site in the hold we're going under an obligation to interview the witnesses who are going to testify at a criminal trial regarding whose responsibility within the corporation it was to handle environmental obligation to photograph all the sites in detail but to defend the corporation we need to i only have a few minutes left i'm going to break from the concessions i simply don't think they're supported by the record we provided the information we were supposed to provide the e p a and they never complained e p a never once said your information request response was inadequate or your compliance with the consent order is inadequate because it wasn't we did exactly what ponderosa promised to do and  without question what you had here in the question is why are we here is easy if mining information supports criminal prosecution there isn't an allegation that they need these documents to determine whether we complied with the information i have i have one comment to make and then i'm done this is from the jump sport this is this is my concern about what he creates doing in this case talks about the second primary policy objective of the work product doctrine it's so that if tourney's work hard to find the right relevant evidence that's what the second part of the work product dr promotes is still that sharp legal thinking and theories can come about it's about not getting into your opponent's back pocket when you don't have a reason to and stealing his mental strategies and it's trial tactics that's what this case is about and there is a real danger that in the labor practices of the security the judge and the docket the court did look at the documents the court obviously didn't see that is inconsistent with what the dockings are which is overwhelmingly purely factual documents and that is all the grand jury asked for the grand jury if you look a in our supplemental excerpts of records huge seventeen the district court said what if i go through and carefully review after all metal impressions are bought and they said no we've given all that information to the government but we're going to factual but we're saying the weight of the evidence is still heading in the other direction and part of the evidence towards the standard is that the documents are factual is that they conceded that they had to have the documents and used them for this purpose documents that would have been used in complying with the e p a requirements this is very heavy evidence to show you because you can't tell us actual documents right i mean they say oh no we collected them for this reason but that would create a huge loophole this is an area in which there is always the potential for that occasion i would say that you need to step back at some level i'm looking at what the work product doctrine is the work product i think is a policy oriented doctrine you that it has to be balanced with why you can't get this information directly from honduras you want to force work but what ponderosa has done to clean up what they did with regard to disposal what their history their records are that relate to this why can't you get that information from ponderosa i think we can they would have to give us to our stock units it's the same question honduras to hire trucks to do the cleanup for them there's are you not giving me well you know if they were getting out a message across the screen that indicates we're getting an incoming call oh so are you really if you don't hear if you lose  and the factual situation in the particular case can the documents be fair fairly be statute has been preparing for a change because of the prospect of litigation at least two important things there the nature of the document matters situation here we have like the timing of the fact that there was a clean up going on at the same time we have the nature of the documents are purely factual documents the documents that we have an affidavit it's his these are documents that would be used in this kind of activity can it really be said  that is to put the burden on the parties responsible to do the cleanup and that isn't as an important public policy basis which gives to save the government's resources and the taxpayers resources should say it's five minutes so it's at ten for a moment that all testify thank you very much two sets of lawyers don't make any sense the reason they don't actual cleanup work he participated in the supervision of some of the cleanup work yes in those documents my next point was that indeed there the documents were segregated and and i want to point out  a possible error so the court has misled the grand jury did subpoena records from ponderosa and those records were all turned over there's never been a complaint that those records were not complete but the records were segregated and then when the subpoena changed toward then those records that were that were part of that were part of what was responsive in what was a privileged or wasn't under the work product unity were that would be covered by privilege that your physician well it would depend on why that document was produced if the document was produced in connection with the cleanup activity and compliance it's been produced if it had to do with the defense in the representation of the client then it was withheld and it's in the documents that have been provided to the magistrate and to the district court and to this court in camera for complete review result i'm not dissatisfied with the result your honor yes but coming back to a point that the counsel brought out that i think is important and that is if the district court judge when veiled did request additional information in addition to the privilege log that was provided and this court has available to it in camera the privilege log which has a further description of each and every one of the documents withheld and why it's important that it be with fell so that that was presented to the district cour what the content of it was yes yes and there's a and that was in family that was an additional privilege log that this court has available to it i want to talk about th explain further we also made ourselves available if the court want to if the district court wanted to talk to us in camera for any further explanation could a company subject to an investigation of this firm employee responsibility to turn over relevant documents to the government by having the expert actually do all the work i'd like to address the the answer to that question in a different way to having to do with the policy because one of the questions to council had to do with is it good policy or something in effect to institute for the government to take the position i think it's a much more responsible position for a company such as private ponderosa to take to cooperate with e p a and i can assure this court because i represent a number of people  people and it would be my my perception that the next time this opportunity comes up if there's a choice to cooperate or not cooperate and and we lose this appeal then that is something that good counsel need to advise their clients about and there are going to be in the population of clients a number that are going to say i don't want to take that risk and there may be some attorneys that might even make that recommendation so i think there's a very strong policy reason to  required to have been generated in order to comply with the consent order and have not been produced that is an internally inconsistent statement made by ms vega and she does not make this affidavit of her own knowledge she makes it on information of belief and we don't know where she is where she got the information and we don't know why she believes that we but we can read the documents her selves what one senses are your over time i want to thank both thankful for their arguments