good morning may it please the court my name is diane weisberg with me today is co counsel gerry weisberg and miss daniels who is also co counsel has the flu and didn't want to infect the court i've only asked for ten minutes because i want to emphasize the chilling effect on parents rights to record i p meetings and the fact that in this particular case  main case it the main case is tad most of its briefing done the last briefing is due today as a matter of fact and there is a trial date on the m s the end of april that's the current status right now they all court has elected to stay this portion or the cross complaint pending the decision of the ninth circuit or whatever decision any higher court chooses to make but my emphasis here is on the discrepancy huge discrepancy between what parents claim is objecting to your overall right to record they had their recorder there as well absolutely so the whole objection here is that the father was in the room the mother and her counsel left and the recorder was still right right right so why did the district court here they district court for this reason the district court was stuck on whether or not the intent of the pardon was to record or not that's not assume that that that unintentional recording is protected ok why what's the public interest here the public interest with the implication here and the public's is that with this was a private setting correct no no it wasn't it was in your view of the school room where people were coming and going all the time there were seventeen team members that came and went during this alleged confidential invited to attend because they're interested or in there they're engaged with the child in question or there are sometimes there are students there from the local colleges and universities who attend there's frequently people that asked to attend these meetings the question i'm trying to put to you is that there's a specific argument made in the answer in brief i can even probably have done if i wear it's made that that raises the question of whether this qualifies as a matter of public interest under the statute ok and i read the reply brief i see nothing whatsoever regarding that i specifically thought about in a reply brief the public interest in issue and the opening be very fair and briefly in the about the fact that this is about parent access to the court no it's not the question posed at least the challenge posed in the answer in brief is that the private conversations recorded here were not quote in connection with a public issue or an issue of public interest close quote you're trying to tell me that the broader legal question like any precedent from this quarter and the other court might impact another case but that's not the question being or the challenge being raised by the answering brief and that i'm trying to get you to address here which is what is it about this conversation that was a matter of public interest the public interest of that conversation had to do with the rights and remedies to a child to receive a free appropriate public education and his father was sitting right there in the room up that child right thus any do with the rights of any other child that meeting was specifically about the m that meeting was about the end but the effect of this of bringing a counterpoint to stop d n or any parent from bringing a lawsuit makes the counterclaim a matter of public interest but it doesn't make the conversation being recorded something that's a matter of public interest it goes to the courts and the expression only the courts opinions regarding this leverage that school district ads against children that's what the main thrust is here this is another attempt to start from vande children's rights and parents rights and find a back door approach to chill the right of a parent to record or to bring them action that's the public interest now what is your home run case we read your the briefs and is there a case which you can point us to which says that  conversation here involving a child was a matter of public interest where is your home run case there is no home run case it's a matter of first impression  honor i'm just curious have you checked out other other states i checked other states i checked as late as yesterday afternoon your honor there is no taste on this if you direct what it's not i've never seen it come up before is one of the few states that has a statute that specifically allows for the recording of i meet and it also says in that statute notwithstanding six thirty two of the penal co it goes to the legislative intent of the statute under education code five six three four one point one point one it goes to the legislative intent and that's what this court needs to on the reasons the california legislature want to do this statute in place to protect parents rights they wanted them to be able to record so with there and use  specifically says use it in subsequent proceedings that's the other part that makes this public and need for the public to be able to access the courts good morning may it please the court c n n arden's for los angeles unified school district this case is not about recording and i e p meeting the district has no issue with recording a e p meanings and agrees that the education code allows for that but the education code does not allow for is recording outside and i e p meeting and i e p meeting convenes when all of the members that are interested in the particular student's individual ais program are together and agree to start the meeting they do take breaks they do take lunches and recording a stopped let's call it what you say recording is stopped but recording doesn't have to be stopped i mean they've quarter sitting there and still going i read the transcript of this one and somebody makes a point of saying is it stopped now but if a court is sitting there and still running what makes that an illegal or unlawful act well a couple of things one the person who is doing the recording has a responsibility to ensure that their recording is within the parameters authorized by the statute anything else exactly it doesn't say anything about reporting chiron or you need permission and consent to record a private conversation absolutely in that six thirty two and that's what our case  about six penal code six thirty two i've got to tell you this strikes me as one of the silliest counterclaims i've ever seen how was you l a us city injured you know i appreciate the court's comment it is not an easy thing to do to bring a counterclaim in a situation like this it is rare i thought somebody has exactly is described as being used as a device to try to obtain leverage what's the point of this no that is not accurate the purpose of it is this w privileged conversation the courts and lot now aren't you know u s t injured because it's privileged communication was recorded was then transcribed and them was attempted to be used against it and we're going to hear any injury the injury is is the fact that it's privileged conversation we talk about chilling the courts have long discussed the importance of the attorney client relationship the ability to have confidential communications to you as was laid out in the declarations here to strategize about cases about walk and about how to handle situations going forward that is  may be a private right of action that permits you to recover some liquidated damages or specified amount but the presumption is still that there's some injury suffered if somebody overhears a conversation does that client have informed the counter defendants that they were going to confer that she needed them to leave the room so that they could have their conference make sort of end of checking that their own recorders been turned off and doesn't bother to check to see if the other well strikes me as and usually sloppy and probably shame on whoever it was it decided to have a privileged conversation knowing that there's a tape recorder sitting on the table well i think there may be a picture in your mind  reporter like the old fashioned push the buttons there's a big recorder it shows probably makes a lot of noise while it's recording that's not what we're talking about it's actually a phone to your client and i know that there was a recorder sitting on the table did not know that the recorder was being used the question i asked just yet did your client not know that there was recorder sitting on the table no i can't say that i can say if they knew that the recorder was sitting on the table knew that they had their own recorder sitting on the table make a point of asking if their own recorder had been turned off but never bothered to check with the other recorder whose fault was all of this but in terms of talking about the recording  well let me take that piece by piece in talking about the recording that was a discussion to the whole group that is recording is off where off the record i do is it incumbent upon the district to go over and their five it and pick up somebody personal boehner and verify whether it is turned off going to have a confidential conversation right there where they know recorders going i'd say the answer to that question is yes that's the only practical way to respond to the situation but like i say i have not been persuaded this counter claim is anything less than than silly in an attempt to intimidate so well and i would try to argue with me or my colleagues but three are why student do you mean that the process that i e p meeting process finding yes and i i i think that is a matter of statute and a matter of law how those procedures go forward but what happens in an i t p meaning is not public it is in fact protected by football state law and federal law so there's nothing public about communications that are going on and i  designed to develop the individual i said u k tional program for that particular student each one is different and the people that are allowed to attend are those that have the ability to assist in developing the goals for the student in that interim program so that it's not in turns from some college that just happened to want to sit in on on it and that's not the case these are very much as i said protected information by under for by and state law so that by definition this can never be an issue of public interest the way you're framing  for the question of the ability to record outside and i e p meeting i think your point earlier made was that that enough itself the law on that matter could be a matter of public interest but what happens in and i p meeting is not a matter of public interest and just to the point of furthering the constitutional rights we've briefed this but i want to reiterate that it's the reporting and not the publication that said there is the flatly case that we did not cite in our papers unfortunately but that is the case that holds that if it's illegal conduct in here we've alleged the violation of penal code six thirty two it's not protected by the constitution and cannot be in further and of constitutional rights to the district to your point as well about the the district court ruling  it was not addressed by appellants the court sifted through a lot of i think there was a lot of extraneous things submitted with the record and i think both sides are guilty of that to some degree but he denied it on a very straightforward basis that their contention that this was an inadvertent recording is intentional i do and i believe that it's and she's the claim that was unintentional so it gets to the merits of the underlying claim i i'm not suggesting that that's a finding for purposes of the six thirty two claim what i'm saying is that the court found that you cannot have it both ways as counter defendants want to assert that it was inadvertent on the one hand and on the other hand that it was in furtherance of their going just of your own right on  is this a slap in the right exactly exactly so i am focused on the further into the constitutional right and saying that my time is up thank you for the a minute left i believe a little over a minute if you wish to say and use that time i want to say one thing about something counsel brought up i brought up in the papers as the court said the issue about accidental or inadvertent recording during that lunch period but there was nothing precluding my client from listening to the tape and in fact is the brief says was accidental and there was intentional action thereafter by but does statute specifically allows you to use the recording as counsel sat if you use the recording of the i  doesn't the statute doesn't talk about the right to record and utilize conversations during breaks or in this case during a confidential communications of the school district but once again your honor it couldn't have been confidential if left the room they make a point of saying are we allowing you know we're alone so i'm having a little trouble with the notion that he was there all the time there's no time on that recording your honor where they ask him to leave the room or he's heard but there is a time when somebody says are we alone and the answer is yes and there's a time he comes back later i got to say the whole recording struck me is not very interesting we got a fair number of complaints that i hear regularly from my own wife about husbands and boyfriends and lots of other discussion and kind of chatter that takes place over lunch but that this whole