about the how broad this waiver or however you characterize it of the privilege assuming there is one should be i mean mr jack betas came and said i can't testify at this deposition because i'm on medication from your briefs it makes me sound it makes it sound to be like you don't want to only ask about whether he could competently testify at a deposition but also whether the other information he gave in the case was competent and my first question is i guess has he ever claimed that other information he provided is schedules or wherever was adversely affected by a mental or emotional condition or by  medication he hasn't come out and specifically said that anything that i have signed under penalty of perjury is subject to my medical conditions but there are at least two deposition notices one in the state court matter and then again in the in the bankruptcy matter and which friend jack about estates i can testify my mental condition isn't me testifying under the influence of medication as a result of being in vietnam so the issue here is if he has and by the way the state court objection to the deposition notice was in two thousand and sixteen and then again in two thousand and seventeen so to the extent that he has been taking medication i think we have the ability and the right to try to understand when he started taking the medication if he started taking the medication prior to signing the petitions then i think that would put it put into question his ability to sign any declarations or any of the petitions under penalty of perjury because if any of the medications or his mental condition prevents him from being able to competently testify today and he will have the same condition prior i was taking medications prior to filing bankruptcy and why would that not prevent him from company testifying  that point if you're hoping to use that discredit essentially everything he said i'm not trying to discredit everything that he has said i'm trying to understand if he even has at this point the ability to testify as judge albert pointed out one of the issues that's going to occur in this case is any testimony that's brought up in impeachment and there's several aspects of declarations out or are contradictory from jack about is going to throw up his arms and said well i was under the influence of medication at that time that's not that's not about declaration and that's i think it would be one thing if he does that trip when see that when he does that i i think there's should be no question that you can ask questions about that but in advance of him making that assertion why should you be allowed to pry into his relatively private medical condition well again it's multi faceted if he is unable to testify prior to filing  then he is unable to sign the petitions in the township perjury if there are documents that he is really mean is that that's certainly true well if you if he does not have the mental capacity to be able to take the oath which is the requirement to well it's similar if he is unable to competently testify whether it's to fax whether it's to any aspect of this testimony when you when you when you raise your right hand and say i swear to tell the truth the whole truth the nothing but the so that's that's essentially at this point what we are seeking is to get an understanding of what medications used taken how long he's been taking them and what those medications actually treat we're not trying to get broad understanding of his whole medical history or anything like that at this point so why do you need another diagnosis well as i indicated in my briefing for example if he is suffering from schizophrenia for example and because of that he understands or sees facts differently than they actually are then we think we need to understand that and we need to know that because then anything that he has that can be taken without understand i've got an a list of a logical problem now i mean as opposed to whether he thinks it's true or whether he thinks it's true as well he's committed perjury well there's two different things but then i'm worried about this kind of swallowing up what's what's really a very serious regret about the you know the truth of what might be  and i don't believe that that that they're they're actually different things when he has raised his hand and or written that he's signing an apology perjury he's the testing that that's the truth as as as he understands it if he can and what's the consequence if he's if that is a false statement well does it make the statements untrue well it was if you don't know you're right we don't know yet yeah and his ability to come back and be able to use the privilege as both a being able to send me on the privilege i agree but what i what i think you're hearing from everybody here is you know is there a communication should there be a privilege i think you're making a point that there shouldn't be as in the instance in which it's arisen but which is which is what ends up becoming an issue we need to know if he is under the influence of an occasion how long is he going under the influence of medication that prevents it makes it his words impossible for him to testify and that's the key know i guess i'm just i'm having difficulty with that because seems to me that it is perfectly common in a deposition to start off by asking your preliminary questions are you taking any medication or are you suffering from any health conditions that would prevent you from understanding answering my questions appropriately day your words everybody asked that question to give every deposition i saw but if the answer is yes i'm taking medication does that mean that you have free reign to delve into that person's medical history for some indefinite period of time going into the past just not sure about that it depends on i think it depends on what the medication is for if the for example if the medication is for high blood pressure and it doesn't affect the ability to remember and be able to take the oath and testify to facts that's one thing frank talk about as in his papers has indicated it makes it impossible for him to testify effect of medication make it impossible for him to testify so how is it that it's impossible for him to testify yesterday but it's possible today and what's going to happen tomorrow and if he's sitting in that witness stand not this one obviously but in court at trial is he going to be able to at that point say well you know that declaration i made i was i was it was impossible for me to survive the day that you know but then you i guess my question is you can deal with that when it happens if and when he makes that assertion you could deal with that assertion my question is to what extent are you should be allowed to make a preemptive attack you know trying to subpoena a statement that he might make in the future and get the information about a pretty private matter before discretion hearing judge robert looked at that and said look you put your mental capacity to show your ability to testify at issue and because of that you waive the privilege now i indicated and in the state court all in the case again here but the event that frank about it says you know i was under the effects of medication i would be able to ask him well for example on you know when you made this declaration of the effects of medication and i rely on this declaration and i rely on this testimony and i rely on this and i've allowed that or not and the way it is right now it's sort of a unknown whether we can rely on any of the statements that he has made because we don't know when he started taking that it was you know testimony in general in this case going forward well again he has put his ability to test and i understand that but if there's a difference between you know are you able to talk intelligently now or incompetent five and you know i something that you said in a declaration a year ago true or not one of two different things they are but i think the more broad question is when you made that declaration a year ago were you able to make it make a statement where you competent enough were that kind of assumes that the minute one has any kind of a mental difficulty it is across the board disqualify not true not across the board disqualified but that's where you're headed is my jorge well and that's sort of why we  explore the issue a little bit if you started taking medication yesterday hypothetically then we know ok up until yesterday all of the testimony is reliable all the decorations are reliable if you see i mean the whole point of reliable and i'm i'll stop taking a rest time is sort of zero point reliable is you know the old joke that you know paranoids are wrong you know i mean you can you can be a little bit disabled and yet able in other ways and i'm worried that there is going to necessarily be some really broad effect to what you're asserting here that's really going to have a very broad effect testimonial and you know for trying to figure out in future matters not just whether he was competent in some sense on that day but just what the facts are and he puts false information declarations committed perjury under dr ration and a declaration can he not have a point say i was under the influence of medication that's not perjury that that goes to whether you're going to pursue him or someone going to pursue him for perjury as to whether black  it was worth a thousand dollars or two thousand dollars and i'm worried about the second piece that you're going to this is going to lead to basically excluding testimony without really testing that well and we're at this point trying to understand what testimony is  what somebody can actually take there is a five twenty three action there's also seven twenty seven i got here you know seven twenty seven action says he live on his petition and he got tools we need to understand if he knowingly lied on his petition and schedules and one of the elements is if he is able to testify and he's able to take that oath there's a knowing element if he is under the influence of medication would that not be a shield to say up i was under the influence of medication but as i raise that only w it i'm wondering if there's a less intrusive way you could go about it and get yourself the same kind of assurance means he comes to the deposition he says i'm not taking medication today it is possible for me to testify truthfully that's what he tells you correct but suppose you asked him well on the day you signed the schedules you signed those under penalty of perjury where you take any medication that day that made it impossible or difficult for you to understand what you were in for a sure providing and to provide truthful information and he says yes then you could acquire if he says no i was not to case that medication then on a day when he says he's competent he says he was competent then haven't you got him adequately pinned down without inquiring into what i regard as a pretty sensitive issue about psychotherapy that is something that we have not really considered to go and test the veracity or the ability to testify and every piece of ability i think to and not just has any but any individual's ability to really remember whether he took specific medication that would potentially affect his ability to testify four years ago honorable on one specific day would be virtually impossible i can't remember what medication i took yesterday let alone four years ago yeah but i mean in any any answer other than no i was taking medication does a pretty good job of discrediting him seems to me let me bring this back to the order though that's actually a issue your interpretation from what i'm gathering from your oral and written presentation is that the judge is the same in the plaintiff can ask questions clea unlimited diagnosis medication prescribed and taken purpose of the medication the side drug side effects the drugs gives you open leeway it is not just for that day you're saying you can go back retroactive based i would say yes we would be able to ask were you under the effects of this medication side effects for example of medications as far as i understand i'm not a medical doctor don't go away if you don't take the medication one day if you know if if the medication affects your ability to remember it's not you can't remember one day if you don't take it the next day you can remember it's a gradual and this is not i'm not i'm not a doctor but that's just my understanding of how the medication works so that their systems are also thank you your time's up thank you for your argument on the matter submitted