argument this morning was in the larger context of what standard off there be for piercing the attorney client privilege and i think we have done too little throughout this to know one thing t dispute and that is that the materials that are to be produced under this water are unquestionably at the very heart of this old and vital privilege secondly the i think this would be seen as a very major decision if those clearly privileged materials could be sought and communicated on site today at best extremely slender and we think nonexistent basis and thirdly if you look at the scope of the production order which we take in any event will be vastly over broad you can see that it goes well beyond what anybody could reasonably think would be inferred with even of those issues that are raised in this case all the materials relevant attorney client communications relevant to a three year investigation shows i think how it was treated now the most fundamental point that i think we start with because there are many areas below is that the plaintiffs did not and could not prove fals charges were not proven and in fact they're not true the white paper that was submitted to the justice department address concerns about competitively sensitive information and whether that information would come back to when you say prove i'm sorry just one n s a proof are you using which standard are you using for proof i can answer that question any one of of three wa i can tell you i've looked at this and i think it's all everything submitted in the white paper was true i can tell you that the standard that they have to meet is their requirement to put on evidence which would esta there was a reasonable cause to believe that the attorney's services were being utilized in furtherance of an ongoing on lawful scheme and i do think and the ninth circuit precedent and the grand jury proceedings there is room the standard ought to be at least a preponderance of the evidence under the term must establish reasonable cause to believe it's not surprising that most of these cases are us versus a criminal defendant and we're talking about someone actively obviously on the face of the contract and that means of course that the spillover was not producing any spill it was not producing coordinated pricing more to the point is the fact that the disparities significant in themselves and the stated terms were not eradicated and there is literally no evidence that of equalization i judge wallace and correctly so we got to talk about equal treatment and equal terms than the earlier case here we know what the terms were the judge first thought there was a concession that these terms were equal as it turned out not to be the case as she acknowledged on reconsideration so then i think she labels material license terms were disparate as you energy told department then the rights created by the m f and had to be triggered that's how and their fans work now there is not how speculative and have held how many of the m f and causes that seem now to be under spiel were submitted to the justice department as part of the white paper the white paper there were four pairs of agreements attached to the white paper an answer to judge wallace and questions we believe that and the general submission to the department as far as we know all of the agreements that we were party to were submitted to the party we're not sure about those that came after it's the relevant fact on and one of the clause in one of the contracts that was submitted to the department it's point number ten is most favored nation and an excerpt of record one two two five it is a submitted document and here is the page you are wanted to five point number ten most favored nation underscored bolded and in all caps this is not something that had to be hidden so that we that was before the department before the any trust a vision as well as the fact the only thing we added on reconsideration to ask for information on m f and causes in two of the seven requests that they make they narrowed the list of issues to be matters to be discussed and did not include m clauses which sometimes the division looks like looks at for its own purposes so that the idea that there was concealment when these clauses were actually submitted to a group of attorneys  who are probably the world's leading expert on expert on the operation of m f and causes that how they may affect which they ask about and which are clear on the face of the submitted contract but then causes how does that give the lie to the basic argument that everybody's getting separate contracts without telling other people what they are i don't see how it if everybody uses them and then cause i don't see how the question here is this this is a joint venture and i trust problem and everybody industry use them i don't see how the m f then calls itself affects the problem of  venture as such how does that work how does that connect i think that question is right on point if i if i understand this is there are so many ways in which the statement is not false that is the reciting terms were the different terms you can see the differences are just one point how significant the differences are you can look at page fifteen of the white paper which is submitted under seal because it has comparative information in it the chart on page fifteen of the white paper sets out differences and contracts i want to go shaded by sony and un g with the same  y distributor and you can see very different i'll just say hypothetically that one contract provides for a one million dollar payment to one of the companies the other one hundred thousand dollars payment bu all the other terms are different so you don't know which is the more favorable or which is the least for the one that has the last gets less money upfront for its for its use it gets the higher per subscriber rate and you are betting on the future so that at different itself alone demonstrates the absence of coordinated the absence of coordinated pricing of the spill over and work even if contrary to anything we know about this case those firms were actually equalized later now so let me go the boys were they equalised there is literally no evidence that that's the case these clauses if you look after them provide some contracts terribly up to the licensee the person who's distributing the music to come in tell you that they've given a better deal to someone else they have to do that in good faith but it's so subjective whether one of these other complicated agreements is or is not more favorable that it's hard to say that there's a clear duty then there is a process by which in a very limited way once a year during the term of the contract you might have you have the right to initiate an independent review by what is called a top tier national financial services company to come in and assess the contract you say you know and you has to pay the entire cost of vest and you've got a limited remedy of maybe swapping one agreement for the other but there has to be the parties are supposed to work reasonably in good  to come up with some adjustment and that is quite whether you could ever succeed in doing that there is simply no evidence that they submitted that either the contracts were ever equalized and the relevant point would be at the time of negotiating the contract did they get there they go to simply not care what the terms were i think you'd be fired if you came back and said i've got an f n cause of this contract ok let me take you off the current track for just a moment i think i understand the argument whether we agree or disagree for the moment is neither here nor there but it's heavily dependent upon our understanding of the merits not only as to whether or not there was a lie or  well this time that i mean even if we only mean as a kind of term of art that has to be entirely separate this is hardly separate at all i think it is easily separable and at the end of the day i'm not afraid of mandamus review but i'll come to that but it's easily separable in the sense that you don't have to make any conclusion about the any truck the merits of the any trust counterclaim to review a decision breaching the attorney client privilege on the basis of no evidence that would falsify the statements that were made and that that she has been the judge below conclusively determine that it's clear reversible error and separate from the merits of whether there's a good any trust claim or not if there's no evidence that was support a breach of the attorney client privilege that issue i think is precise and ready for review with understand that to be the case judge fletcher but that doesn't mean that you have to in any way a value weight that evidence from from any trust perspective but if i say there is simply no evidence of cornish and through the why does it matter right the ultimate any trust appearance because no there is no showing that a false statement was made when you put on true evidence of disparate terms that itself demonstrates a lack of coordination  pricing and even if those terms were later equalized that would have no effect i think there's no evidence of later equalization but whatever the any trust consequences this beside the point and let me just say that i think in this case because motion and that and the merits and i would like to go right to it you've been hearing about him offense this white paper as judge patel found did three things not just him offense it emphasized the independence of press play joint venture from its parents that was a very big point and i have a quote if you want to hear in the briefs they emphasized the in permian delivery of the fire walls based on the guidelines that they had had put into place and they repeated that several times and then finally in the point that gets us to m f ins they talk about the great dispersion of contract terms being proof that these fire walls are impermeable it doesn't really matter what your view about m f ends or how they work there that's that's the argument that they're making dispersion equals equals but the fire malls are working the way the record and i apologize for this because the record is factually dense and what we need to do to defend judge patel's order is continue to point out to you how reasonable based on the record her decision was the way this press play really worked as the exhibit showed is that before press play had a single employee after it had been talked about and worked on by the partners for a year they had already worked out their own contract terms with  joint venture which were to be identical and they had also gone way down the road to go shooting with warner so now we've got locked up about sixty percent of the music before that press play ever had an employee  l time warner about what press plays licenses are going to look like that and whether or not warner is going to be given an m f and this is in the context of a white paper that talks about the independence of press play f parents after press play had employees in april of two thousand and one human she still did the negotiation negotiating and that is shown at the supplemental excerpt of record for ninety six there's a  entity the record before judge would tell also show that this that the the much lauded independent consultant which the white paper talks about this man who is supposed to negotiate the content license is ted green judge mattel cited at our one eighty one through one eighty three this is by play between you and g employees where they're saying ted green the independent is not pitching content licenses that way indicating that they're sitting there listening to him pitch content licenses which are supposed to be verboten the response from this might babble working for you in g is don't worry about it we can sit down and deep brief them indicating that they sit and talk about content distribution and content availability something again that is verboten they felt free to chat with him the very next day this is an april of two thousand and one and all this is going to independence and incur me ability the very next day bevel who's the u n g a employee is going to go over to do well at where he is supposed to become a quote independent employee and an s c r seven sixteen seven seventeen you can read recommendations to mr before he sends over this employee to become independent he should sit down and tell him exactly what to do and then once he gets over the wall where he's supposed to be independent he can tell the independent ted greene exactly what to do  short before press play had any employees you in jihad negotiated with werder they primed their designee afterwards they continued to negotiate that establishes we believe reasonable cause to believe that statements about independence and fire walls in this white paper were factually false but then in addition i'm getting to the i haven't even mentioned him if in the very substantively yet in addition human g s spends twenty pages of its white paper talking about the disparity in licensed price terms without once mentioning that the key licenses were subject and that's when clauses not all but the key ones sixteen that says the joint venture shall not enter into any arrangement with any other person on terms that are more favorable than what we've got and what they got were identical so eight will be in duet you know that when my crit when using that was for not in the labels concerning how much money will be made by each label over in using that word you have you and she has no business being that's s t r seven thirty eight you and g is told by warner that warner wants a side letter this is the one this is the best way and my response is that when you submit as a factual matter to the department of justice representations that this is an independent entity with within permeable fire walls that are not breached that and that that one way that you can know that in addition to us telling you is to look at the disparity of terms of the licenses do not at the same time say by the way disparity of terms is completely a loser e because no matter how they look venture is ever successful and of course it was not successful our contention below is that it was designed not to be successful but if this is ever successful you know that you can pull the trigger on a method ends and get equalized terms you can have all the disparate terms you want to floating around in the were in the online distribution business but you know that you have contractual rights or at least the five major labels have contractual rights to equalize and make said they didn't know about the about the mil you said well i don't know what they knew because nobody had what all we know what this is the d o j said at the close of the investigation that they bought this argument the great disparity in price terms shows that there's not a problem here napster has been shut down d o j says one of the things we looked at was the disparity of these license terms and we believe that that and that's why we're shutting down the investigation i don't know how they could have said that we were not privy to it i don't know how they could have said that if they had understood the truth fact of m f fans on these licenses i did then and they must know with you to a fact  because unless they're kind of no i mean everybody knows what the true purpose is to be together right your honor that the department of justice has human beings working at it they've got millions and millions of documents they've got white papers that we think unfairly characterized what's in this millions and millions of documents napster had shut down this was no longer important well i don't know why did they start off saying you are interested in m f and they started justice a lot i'm hesitant to say yes they know you can the fact that something is a documents but we claim and we're kind of an indirect misrepresentation fraud and they have the contracts they're well aware of what emmett plans will do that's why they're asking about in the first place and so why is it pronto well the the the fraud first of all to to violate thousand and one as  of course that we all know you don't need to mislead it doesn't need to be successful all of that is straight you don't need to write the do not misleading try real hard i'm sorry i just have to try i know you have all you have to do is try to put in under these circumstances to put in white papers that purport to summarize millions of pages and characterize millions of pages where the whole point of the investigation has begun to be kind of lost this was  begun when napster was hot now after got shut down two years later these these these joint ventures gone nowhere and the department of justice stopped its investigation making statements that we don't think are consistent with what's in the papers but making statements that the music the record labels have continued use to say oh look they investigated it thoroughly this much must be true of course housewives that's what severs your attorney client privilege attacked from your ultimate not isn't influence necessarily by the fact that the d o j over looked the and their fans are right not necessarily no your honor i agree i agree that's that's a distinction and i think this the justice department is our understanding you know it's front over what they know i don't know you know you don't contest that they were delivered to the general we don't know they were in the building and were submitted by the parties ok correct how much of the narrative that you were going through  t know in terms of brown from says that as screens as that and so on these e mails were also delivered to the justice department and they were there was an issue below that redacted form but we're we don't need to rely on that now  there were in the e mails in the millions of pages and yeah so i think your claim of violation of ten to one really comes down to the covering characterization in the white paper is not true and the justice department was inundated with some many documents they were incapable of figuring out the truth even though the documents once they figured out if they had ever been able to do so would temperature i wouldn't characterize it that is for somebody who actually tried tries these cases it's all it's a lot easier than a lot of cases that the justice department brings i mean if you say something that is a misrepresentation notwithstanding the fact that it was copied to the the other people knew and all that sort of thing those are defense matters in criminal cases here we're not trying to live up to that we don't need to live up to that standard we're not talking about beyond a reasonable doubt we're talking about is there reasonable cause looking at that record that it's almost a lawyer in question i mean we just know that lawyers try very hard to submit all the documents they're required to submit and then to persuade the judge that they don't mean what the documents seem to though is submit is to say things to a judge that are simply factually wrong and particularly to do it in so many times and in such a way that makes it look like we're intentionally trying to mislead the judge about factual matters here the factual matters are independence impermeable a t of fire walls and all the really secondarily the fact that this disparity tends to prove the impermeable ity this isn't just  i mean this is not advocacy if it were purely advocacy we wouldn't have a case this is the making of factual state our judge would tell found that the record before her establ to mislead the c enter element has to be found and materiality which i think is is and in the spirit here if you find those things it doesn't matter that the skeptic you're talking to sees right through you company had nothing to do with that that can be prosecuted as a as a false statement that turns out to be wrong we contend that essentially that's what happened here what happened at the justice department how they handled the investigation why they handled investigation is not something that we're privy to we don't think it matters to the analysis except it negatively that that if you're if as you're trying to to balance the answer but there judge patel gets the benefit of the doubt we believe under the abuse of discretion standard you can she's the one who who in the first instance weighs the evidence that's before her at the helm not with the with the problem that i alluded to  say the very your argument as to why is the statement in the white paper are untrue he has as i understand it dependent upon the very documents that were given to the justice department it then be a lie within the meaning of a criminal statute for the parties that you're accusing of having violated the statute have both submitted the documents and then provided an inaccurate description of what's in those documents if if the inaccurate description is made with seeing intertie mislead it can be united states for scared at it literally false statement and herod pointed out to other documents that the government had that they could if they looked at him they could have figured out the truth but had but from what source for him from him he had previously submitted forms he submitted th form then in the past and submitted other forms but the point really is it's not the false statement it doesn't matter that you were the stupidest criminal in the world that how in the world having submitted your documents could you walk in and say i knew nothing about it when you had given them thirty emails to show perfectly well that you did and at what point does the white paper slide over the line from characterization within a way legal with which i disagree on once i'm just on our right lie is that our position is that saying that the that do at press play was independent of its parents was an outright lie under any definition of independence any definition are we take the same position about these impermeable fire walls and the the guidelines being followed that was if you carefully parse through these e mails you can understand them and they make you blind to try to find in these e mails strings these these snippets that rippling out you can put together what with the benefit of civil litigation and all the money that goes into that we have put together and gave the judge mattel it is a standard tactic and litigation to back the truck up to the door so that the haystack overwhelms the needle i mean we all get that and and when you're making written advocacy statements to the to the department of justice that's one thing it's an advocacy statement but when you're making written factual statements of the partner of justice we believe the judgment to always correct in finding reasonable cause that ok that could violate thousand and one the last thing i wanted to say and i know i'm out of time is that we believe unlike our colleagues that in any event the very low sole one in camera review standard has been that and if if for any reason the court does not support judge  patel's conclusion we think that the zone one in camera review is an alternative should be should be the remedy you ask for that we did ask for that we've asked what we asked for it below and we asked for it in our briefs i mean yeah we didn't ask for it we had to win but we if we to confuse affiliates of our licensees press play was able to partner up with a o l and with yahoo and there was no barrier us being fully involved in those discussions and dealings and then whatsoever they're not within the firewall which deals with content providers secondly generally thank they take the notion of independence that you can have a joint venture where where the two companies actually have their employee staff it or you can set it up to be independent where the employees have a fiduciary duty that is completely separate from the notion of being screened off from this limited amount of information sony and un g were responsible for the supervision and the management of press play it was never any doubt about that that is told to the department the department is told that material business decisions have to be approved by a committee consisting of of un g and and so many personnel there is the email one examines email from ted green as to the ted green e mails that excerpt of record one eighty two and one eighty three we're not about pricing or terms if you look at that email just start with the very end of it it's initiated by we in the pits ph d the chief technology officer about some technological concerns which were clearly within the responsibility now on the back on the last or the first point reciting terms alone showed the lack of coordinated pricing regardless of what would happen later with equalization and it was never any evidence that that equalization occurred on any of those grounds it was strip as in terms of the collateral order doctrine any time you have an appeal of a privilege docket it involves evidence that one party thinks will help it out on the merits that does not mean that it is a collateral and the appeal is not going to decide the merits of the any trust dispute as i as i think mr kakkar conceded in by saying that the piercing of the privilege is an extraordinary step and therefore i think it is quite important that it be reviewed and corrected in this case i think first opportunity because it will never work if you assume that your privilege can be upheld later on appeal at the second trial thank you ok thank you thank you very much thank both sides for