good morning your honor may please the court my name is brandon ford i represent one of the appellant's joshua weiss with me at counsel table is david darnell he represents mr farrel and mr reed he will be addressing the federal reid appeal as well as the petition for  your honor this this case presents an opportunity for the court to enforce its prior ruling in re napster one of the challenges with the crime fraud exception in this particular matter is that the pla we call and i see has engaged with what we call for lack of a better phrase jurisprudential whack a mole and the basis for the purported crime fraud has shifted as the case has progressed and that has made it quite challenging for us in order to make if i ask you this as to mr weiss why isn't it moot as i understand it the chain emails have been disclosed already cracked that is correct your honor it's not moot because as we set forth in our reply brief the voluntary disclosure of e mails pursuant to a court order does not a wave privilege it's only when there's the voluntary for production of documents that there's that there is considered waiver or moodiness and we cite a number of ninth circuit cases for that and second we believe that it's a attorney client privilege document that consistent with precedent is is subject to a claw back and so we don't believe that it's appropriate for attorney client documents to be produced under the guise of crime fraud when no adequate showing has been provided in terms of crime fraud moreover the first iteration of natural immunogenic scrying fraud justification is based on the fact that strata lose which is the company that was formed in the or discussed during the emails had was created soley and i emphasize soley as a vehicle to advance what they purport to be sham litigation that was the justification it had no legitimate business purpose whatsoever and it was created solely to advance sham litigation well that was disproven relatively quickly because a they relied on unverified pleadings but be more importantly declarations from so having had their put the initial basis for production taken apart they've now got to the second issue which is pro maxwell which is one of the products that was purportedly made where they e mail itself in furtherance of a crime or fraud and the challenge here is that even under their interpretation of it this product was not developed a license formulated in any way shape or form mr weiss himself which states the actual wasn't didn't wasn't even developed until two thousand and fourteen or two thousand and fifteen now the e mail at issue existed as of january eighth two thousand and fourteen barring time travel that i'm not aware of it is impossible to form a corporation with the intent of creating products a year from then that are then going to be used as vehicles for sham litigation i see that my time is up i've already exceeded my the production of at least one thousand six hundred and i believe ninety eight documents and the problem that we have here is that we need the court to implement the correct standard in the standard under napster requires the two step process the intent to commit a crime at the time the communication with the attorney takes place and then the nexus to show that there is a sufficient nexus to establish that communications were sufficiently related to and were made in furtherance of the intended crime the problem that we have here is that the plaintiff is all over the board in terms of their allegations and they can honest alledge that nexus as a matter of law what happened with pro machel in litigation allegations about that litigation in june of two thousand and fifteen has nothing to do with forming the corporation in january of two thousand and fourteen when the corporation was formed it marketed and sold at least two products then if it marketed and sold a third product what happened with from actual again litigation june of two thousand and fifteen no litigation whatsoever with the first two products and then the third product there was some litigation in june of two thousand and fifteen but the whole theory here that this corporation was formed solely to pursue fraudulent litigation doesn't match up with the facts it doesn't meet the standard and there's no nexus and that's why  it's inappropriate for the court to issue the ruling that it did in connection with continuity briefly on the jurisdictional issue we submit that weiss does have jurisdiction under crane and under perlman and we also see that because of that and we have a companion appeal here today it would be a waste of judicial resources to deny the same arguments that are brought by farrel and read moving forward to the petition for writ of manda holder and weis is a nonparty that needs all the requirements for perlman that means that we should be able to have the same issues decided along with the weiss issues to hold otherwise mistakes carol wise wife says you know taking care  f you you seem to be trying to bootstrap your clients onto weiss and mohawk instructs otherwise it appears mohawk did not have same facts that we have here mohawk did not have a nonparty also involved in the same appeal with the same issues and that's why we think it's distinguishable and it's important for these issues to be decided together otherwise we're going to have the same document that the wife's appeal may be decided upon and we would not have an  the appeal the mechanisms of which mohawk spoke and contemplated and i don't dispute that that's possible but i believe that would be a waste of judicial resources i believe that would create a serious risk of inconsistent rulings we had a panel rule on this issue now and then a different panel rule on the feral and reed appeal in two years or three years down the road whenever this trial is completed in judgment is entered i believe that because we're all here today the research before the court it would be a matter of judicial economy as well as you know in the best interests of the parties who have spent a considerable amount of time briefing these issues they have matters decided together we also have follow the requests to intervene with the wife's appeal in connection with our unique one it's a product of the fact that the plaintiff filed a on masse shot gun crime fraud motion seeking to compel the production of one thousand six hundred ninety six documents  and requiring the defendant to submit briefs in response to those motions but we could not in reality address each of the documents in the brief brief one we don't have the space we don't have the time but more importantly if we're going to talk about content of privilege documents to defend a crime for a tax that would result in a waiver of privilege because we're disclosing privileged content so we could do it as a practical matter we could do it as a matter of law so what we had to do was wait until we saw what the special master master did and wait until we saw what the district court did and identifying the documents in the tentative ruling it wasn't until twenty hours before the tentative ruling that we learned which of these seven hundred documents were actually potentially subject to a crime fraud finding when we found out these are the twenty six we appeared in court and we said your honor may we have an x party hearing to discuss it content of these documents i believe that  napster opinion requires the parties to be given an opportunity to present evidence and argument in support of the claim of privilege i believe we've been denied that opportunity because we can't talk about privileged documents we can't disclose the contents we can't defend them we can explain them and when you can't do that in open court in front of opposing counsel you have is a de facto ex parte plaintiff's motion because they're swinging at us throwing all kinds privilege documents unless we're going to waive privilege we can't disclose the content we could if we had an ex parte hearing which is what we asked for and there are cases that do allow for this the ninth circuit does not have explicit a case on point but  we believe it's an important issue the napster standard is pretty clear that you have to give an opportunity that we as the district court did not give an opportunity under the circumstances of the  still available if you choose to disclose i believe it would be in theory yes but as a practical matter if you're going to have twenty five or one hundred seventy or sixteen hundred privileged documents being presented at trial and that's wrong we're going to do a whole new trial and a prejudice would be absolutely unduly in unbearable to parties i see i'm running out of time i'd like to reserve the remainder of my time but let me ask you this and i'll add a minute back to your time so what do you think the procedure should have been once the twenty six  documents were at least under the tentative going to be compelled then at that time what do you think should have happened i think what should happen is exactly what happened under a tail versus f c c we have an ex on yes and i think it's going to be fact dependent it's going to be document dependent and case dependent if you're talking about a case like this where you have a shotgun motion as to two thousand documents you don't learn about which ones are really at issue until the hearing over the these are the twenty sixth ok let's talk about these allow us to defend ourselves thank all of those appeals are mooted by this court's binding precedent at the outset the course decision in international mortgage equity which is a twenty one f second fourteen twenty two which was the eighteen  that decision the court addressed a problem an appeal and specifically held that perlman applies only if its application will prevent the disclosure of privileged information and if the third parties already disclosed the information the reason for  ed review no longer exists review is not available to determine whether previously disclosed material should be subject to a protective order or admissible at trial you know that's the holding of this court and spoken to on this issue directly a forecloses both mr weiss and the mr reid ferals appeals in this issue continuity products was the nonparty custodian in this case they produce the documents us a long time ago the document  exactly what happened in this case and then promptly after this the orders a motions to stay were denied and the e mail was accessible to us at that time and we've how we have it with us today we can prepare or we can present argument on it as necessary  e i think mr weiss is jurisdictional footing suffers from a significant flaw that needs to be addressed because there was discussion that while this is mr wise's only bite at the apple he's nonparty perlman accommodate that will first off perlman i believe is properly construed as a surrogate for contempt that's how it was born out of the jurisprudence and so where you have a circumstance where documents have already been produced it makes sense to look at the same prism that you would as a contemporary seating and  there's no longer any requirements on a custodian to do anything at all why would we have perlman for that particular circumstance the answer is they're trying to actually shoehorn the clowder order doctrine into this case under the name of problem and that's that's the risk in this case because prominent under the binding precedent which has been adopted in certain state circuits nationwide has clearly stands for the proposition that it's a pre disclosure remedy it's an emergency petition to the court for relief and the wilson v o'brien case from the seventh circuit based its holding on that exact same premises well now mr weiss says hey this is my only buy at the apple that's actually not true this court in two thousand and thirteen in the legal voice case which was seven thirty eight f third one one seven eight specifically held that non parties stand on the exact same footing as parties in the appeal of interlocking torrie discovery orders and in the light of legal voice mr weis today stands in the exact same footing as any other party in this case and he can appeal these issues related the attorney client privilege and oppose judgment appeal so the if we're going to harmonize the perlman doctrine and well with mohawk has this co attempted to do in prior decisions including crane i think the proper interpretation have to remain with this court's binding precedent and the court needs to find that perlman is in fact just a predisposed to remedy and here all of the appeals are mooted  and the inquiry because i believe judge selma has a district court level offered and yet another reason why in these circumstances the appeals would be jurisdiction improper he cited the fact that you have privilege holders that are parties in this case they've offered that as an a as an example for why they should be able to bootstrap themselves into this case along with weis that's fair and really they say hey he's here we should be here too it's actually the opposite because there parties in the underlying case mr weiss can't technically doesn't have a footing under crane and when pressed in nationwide because his interests are going to be fairly represented throughout the duration of the case so even if we didn't have a moon  under dispositive precedent i think judge selma's ruling in the underlying proceeding in denying their motion to stay is also accurate and correct with respect to his perspective on the law nationwide your honor because at the outset a similar issue that we've seen with this trial lose related appeals and that the doctors have been produced we we have the twenty six files they chose to comply with additional court order and now they're in a position where they're looking to rewind time and unscramble the egg if you will and put us back to a place where they are asking for an ex parte oral argument prior to production which doesn't even appear to make sense at this point given that we have the documents and we can also participate in that process without incurring any heightened risk or harm to their privileges they argue there would be harm but decided that here on earth well i guess that's because to the b factors which discord has to evaluate when evaluating whether or not of writ of mandamus would be appropriate here and i think the inability to really provide meaningful relief and context with their petition should on its face i think justify denial of the petition itself but even going beyond that if we get into the merits i think one of the most important issues on a rhythm and amos is to find the district court had some kind of legal error or some kind of error in fact that would justify extraordinary measure in mandamus and that's just not present here the district court did nothing improper they cite napster for the for the prospect that they need to have an opportunity to present evidence they failed to explain that napster on its plain text rejects their argument the napster to see court evaluated this issue and actually held that the court is not required to host an oral argument at all and then in certain circumstances it would be entirely appropriate to resolve the pleadings dissolve to resolve the issues on the papers alone if that's the court's position and master the court's clearly saying that the district court has discretion to resolve this in the way it best sees fit under the the documents before the court the court made that decision it just determined it didn't need anything else what they're asking for here is a an oral argument behind closed doors that's what they're saying they're not asking to present testimony they're not asking to present evidence like you see in perhaps a fifth amendment case they're asking just have argument and they're asking to do it through a highly disfavored process of an ex parte proceeding which other courts that have have reach this issue including the bender decision in the seventh circuit have said that there should be actually a presumption against this and that when you're dealing with document based review the presumption is actually the that the proper pathway forward should actually be reviewed by the d court almost on its own entirely there's another issue i think that defeats the mandamus on face in that you know this court lacks a record to evaluate whether or not there even was an abuse of discretion and what if the documents on their face scream fraud now i've reviewed the documents and i believe they do but the issue here is that this court here evaluate whether judge found that even abused his discretion unless you review the actual documents which of course they haven't provided to the court there's much made about this sort of ambush style pleading i mean i think the true facts in the way this crime fraud was litigated are very different from what's been presented and this is a motion that's been pending for two years now with stilts aspects of it are still pending the court reviewed and camera to about the little over two hundred fifty of the documents that we submitted with our motion that was subject to multiple layers of review the special master review those documents they knew exactly what documents were at issue when they submitted them for in camera review to the special discovery master they knew which documents were at issue when they file their objections with the district court these are parties that have had five separate oral arguments and over twelve briefs on this particular issue they have actually had an opportunity to submit evidence they did and the district court at one time re man did the proceedings to the special master specifically to consider the new evidence that they had submitted so they're trying to equate this opportunity to present evidence that's articulated in napster with a more you know both a mandatory opportunity to present oral argument before the district court i don't believe that lines up with the president and as i mentioned the napster case i think firmly forecloses that option the district court relied again on the binder decision in exercising his discretion i don't believe there's any there any basis to say that the disk the court erred in his in his use of discretion in last the court has additional time i would submit on the on the record in the briefs that this by me excuse me unless the court has a question for me at this point i would appellate decision quote may still provide effective really by preventing further disclosure and excluding the evidence from trial opinion is also in accord with the u s vs scientology case also by the u s supreme court the second  hearing for the parties to rebut accusations of crime fraud as the specific documents there's nothing wrong with the fact that these documents are not before this court and i think would actually be improper for these documents to be before this court it's the process that we have a problem with the last thing i would like to note is that the special master of the twenty six documents found that seven of them were subject to the crime fraud exception the special master did not find that nineteen of those twenty six were subject to the current products option the district court then went on and had a different opinion and found an additional one thousand documents were subject to crime fraud this is not a clear cut case it's not open in book and shot is not black and white if reasonable minds can differ the defendants need to be afforded an opportunity to rebut the accusations by discussing the documents and explaining why crime fraud does not apply unless the court has any other questions we will see that thank you very much sounding for both sides charging this case a lot of issues here the matter submitted for a decision by