counsel for the f c c i know i have twenty minutes of argument time and what i have done is they've given six minutes of that time to counsel for the f c c who has flown out from the main office of the f c c given the road to make sure the flight was not in vain what are we and then i'll be saving about four minutes for a bot given that ten minutes that i'd like to use at the outset the two main points that i would like to try to get to with the quarter as follows first of all that caissons interest in protecting its attorney client privilege and its journey work product protection remains very tangible and live as we sit here today and is not is as the defendants contend moot the second point is that the facts in this case are truly unique and very distinguishable from the whole panoply of cases out there which i'll refer to generically as a selective waiver a line of cases including the six circuits decision in the columbia  this may be just a terminology issue your honor and i'll stay away from that if it's confusing we're not adopting what i regard to be the selective waiver doctrine as set forth for instance in the eight circuits diversify case what do you want to call it what is it you work product is going to be turned over to the government for you potential use of least in the case of the u s attorney's office is going to be disclosed whether you call it selective waiver or not what the argument which we try to set forth in our briefs is that given the nature of given the confidentiality agreement that's in place and i'm prepared to address the provisions that depend and say or issue in that confidentiality agreement given that given the unique facts of this situation which confirming that at no time where we ever a subject or target know but that may be the case but when you're entering into and what's i mean i'm not belittling what you do it or calling into question the strategic thinking of it because the acquiring corporation but in terms of the traditional attorney client privilege and the work product currently when those these internal investigations they're normally internal and yet from the get go the internal investigation was structured so that it would not only report mckesson board of directors or its audit committee it was structured to report to the f c c and then also to the u s attorney's office when you're interviewing your we're cognizant that we have made a commitment to the government that at the end of this investigation we are going to share with it the fruits of that investigation in the form of that work product under certain terms and conditions but it is not being generated and i think the for the descendants of it tried to make this argument in their papers it's not being generated with an eye towards preparing a report for the government from the moment that mckesson found out about this we statement issue it reported the issue directly to the f c c and it was contemplated from the outset and many shareholder litigations were filed right from the get go contemplated that our firm would be representing an independent committee the audit committee of outside directors of the board that it would also be on going forward basis representing the company in connection with the many litigation that were filed look what you're doing what you're doing and such as we have as far as i know in this case we don't have any of the shareholder litigation demands for discovery correct i mean you may be affected by the ruling in terms of a waiver in those litigations other courts but just looking at it as other courts may have addressed but what i'm concerned about here understanding the dynamics that whether or not it was being prepared for the a c c and for the u s attorney's office it was clearly being prepared with the knowledge that it would be fi now in the context of the brady requirement what did you ever expect when it the document itself on its face says that they may use that in the prosecution that you could generate information that would be adverse to certain individuals associated with the corporation to form a corporation and that the government would not have to turn that over that the government could use you as its investigating arm and then somehow avoided brady obligation what we expected your honor is precisely what has transpired to date which namely that we have had in the district court below the support of the united states attorney's office which very clearly before judge jenkins went on record supporting the argument that there was not a waiver of privilege or work product we have the f c c is great for the government but what about the founders who are entitled to scope with  evidence that's the posture of those cases and it is absolutely the posture and it's something that i wanted to lay out at the outset which is that we're in a slightly different posture today from even when these priests were filed on appeal because we and we informed the court jointly with the defendants in a letter in july about this but there have been some rulings and some related civil litigation pursuant to which these defendants already in connection with a related state court proceeding they have the report they have the criminal prosecution when you turn it over to the department of justice where what they're interested in doing is putting together a criminal indictment against individuals whether or not it's in the casting of criminal individuals it's going to use those materials to develop it's code and it has a constitutional obligation if your interviews show that some of those defendants were acting under orders of the higher ups or that they were not knowledge or we know all the kinds of can lay defenses and those things have been put out there why is it not the case that just released in the context of this case there's no doubt that the defendants are entitle to the what you turned over what you furnished to the government i think that the given the factual posture now which is that they have the report albeit under terms which prohibited from using it in the criminal case what's required is accommodation between the captain's ongoing valid work product and privilege interest versus the gradient will sixteen interests of these defendants it's not our position as we sit here today given the way the factual record has developed that they should be prohibited from using those materials in a criminal case our position rather is given that they have the report already from the other proceedings that they that that the accommodation that the district court should be clearly instructed by this court to make is that a protective order has to be put in place analogous to the one that was put in place and this is a related criminal proceeding against richard hawkins the former c f o of the company and a protective order has been entered in that case by judge jenkins which precludes the sharing of the report or the interview memos with anyone who was not themselves down by the protective order so that they were able to fully use it and then there is a fence as i understand it the protective order might court made a conclusion that he was entitled to it under brady and rules sixteen consistent with his finding here they're going away for of work product and privilege and impose the protective order that on that describing and the issue which you know to get to the crux of it might really be that defendants in this case may not be happy with the type of protective order that judge jenkins entered in the hawkins matter because they may say for instance that they want to share it with third parties with potential witnesses who bound by the protective order and that's the problem that both yesterday in a normal brady circumstance where the government produces exculpatory or useful information what would be the rights of the defendant to use the material in that respect would they be in final to go off from the use of the contact typically they would there we wouldn't be dealing with this confidentiality issue and start over do with whatever with it whatever they wanted to do was put constraints on a constitutional right of defendants to make use of what they're entitled to under brady you want a protective order that says because we are the source of the government's information we get to put tags on it for understandable reasons i understand what you're concerned clients concern is but nonetheless what you're trying to carve out it seems and that's why i asked what you were looking at what are you what are you calling this exception to waiver you were asking this protective order that that the district court entered in there in the hawkins matter actually contemplates precisely that these types of third party experts jurors the court filings all of those things can be made and indeed contemplates that if they wan use some elements of what's in the report in a hearing in a filing at trial that there will be consideration as to whether those filings hearings or trial should be conducted under seal so as to protect it's to continue to protect the privilege because the problem that the caisson faces is that having once been victimized by the individuals including you know who were at this then recently acquired subsidiary h b o which is part of what makes this a very different case from all the other selective waiver cases out there this recently acquired subsidiary which basically got the kassam to pay a large premium based on false financial data that had already been for years and cooked and cooked into the to benefit from the wits of their adversaries here out there which the knowledge has me not to which here knowledge not well but and you know that you could we could have a separate debate i suppose is whether whether it was appropriate for the allowing a public corporation to share its internal investigative report with e s p see without waiting work product protection or work product protection is not absolute is very reached and then there are a number of interview summaries and with regard to grady our understanding and we may be mistaken because we don't take this kind of issue on any kind of regular basis our understanding is that the interview summaries to the extent they contain exculpatory material constitute evidence that would be  would be very different from turning over the full range interview summaries and it is a waiver to the extent that the government is compelled to disclose correct and that's my understanding and what is being appealed to is what is potentially a much broader ruling in its consequence and that is the waiver there is to stay correct not all of the materials that were given to you by  waves the privilege they're not merely worried about protecting their former officers who might be criminally prosecuted i suspect they're interested in protecting them as someone element they're worried that these documents are going to to say you understand that handing these things over to us necessarily means that we will hand over all brady materials in any criminal prosecution however that's all you willing period therefore they give it to you and you say well this just confirms what we thought and we the now using your information and part are now going to bring this action against you and you're suggesting that in that and that is a it has not i understand that they may not do you may decide to take that i mean that's explicit in the thompson memo from the justice department the constraint that those seeking to enforce the waiver here invoke is that when you share information with an adverse party you waive the privilege your right up front giving the a part of the potential o access to your internal communications so therefore when you're talking to those witnesses or the c e o or c ock or whatever they know that anything they say is going to go to somebody you may turn around and use those normal rubric of the law if you if a company is turning over to someone who can turn around and use it adversely to them would be have considered to have waived confidentiality as against the world you're saying no because it's the f c c there is something that needs to be carved out to say depending on who you're disclosing it to even if they're potentially a verse correct ok because otherwise the f let's look at the other side and then both of you will have a chance to revive it thank you attorney's office their lawyers sent a letter that outlined the terms of the agreement and that letter expressly provided that the united states attorney's office could use those materials in a criminal prosecution lee provided that the company consented to disclose in any criminal prosecution that may result from the investigation those particular documents so those are the terms going in and i don't think there was ever brady and rule sixteen material that's not at issue before the court today and that it should be turned over pursuant to a protective order now that it's the government's position that by  and therefore we think simply by referring to the terms of the agreement of which the documents invited to the government the court came a firm lower court's decision and i think that their concern is that y you can it's pretty hard to get around the agreement they didn't understand you were going to use and they are challenging radio aspect in that you can turn over to the defendants as i hear them arguing once the defendants get their hands on it they can go out and use that going well beyond whatever defense needs they might have they may want to seek retribution and turn it over to have a constitutional right to get their hands on this material so what's the what is that you would say in terms of keeping that interest in mind could be done basis the certainly that the criminal defendants have a right to use that information in the context of the criminal prosecution they're able to do so and to the extent that the district court can provide some some protections the other protective order that's made in cutting this deal we felt that we could not agree to those terms especially with a finding from judge jenkins that we are entitle to this material under brady and will sixteen we are however brady arguments day challenge the court's determination that the report and the memoranda have to be turned over in their entirety they the government and mckesson both objected to that and below the judge rejected that contention and ordered the entire production is something that i don't want to get lost here is just jenkins's opinion makes it plain although he doesn't state so explicitly that when the captain prepared these reports in the moran that it had a point of view it believed that it was a victim of the fraud perpetrated allegedly by h p l c executives our it was only in march two thousand and four when the government indicted mckesson executive richard hawkins for conduct occurring after the merger in january of one thousand nine hundred nine that perhaps the government is thinking maybe it's useful roadmap wasn't so that there is no basis on this record to find out that the court abused its discretion in finding that the entire report and the memoranda are required to be produced under brady and will sixteen furthermore in regard unredacted that's correct your hon  here we're not talking about mr crew does work product privilege it's something that has been turned over to the government pursuant to a confidentiality agreement that contains a giant exception it there was no carve out judge fletcher regarding this potential issue that the problem that mckesson has with the with the district court's ruling is that it in determining first that privilege and work product had been waived and then second having made that determination determining that gradient rule sixteen required production is that it didn't cause the district court to do the kind of balancing that we feel needs to be done here we think there is an appropriate way to accommodate the defendants legitimate constitutional and rule sixteen discovery interest a balanced against mckesson is ongoing privilege and work product concerns which is why it's important we believe for this court to confront the privilege and work product issue because we feel that if the conclusion is contrary to what the district court found as it should be and that privilege has not been waived work product hasn't been waived that then puts the court in the way for these defender i submit to use this information effectively fully and effectively in their defense but also protecting the caissons ongoing privilege concerns because the players  so as to those interested parties this ruling goes to those people who i mean those entities it doesn't say that it's way for all purposes but but it's quite clear he does say that we have defendants are entitled to the report and to the state to the underlying materials because you waived it in the confidentiality agreement with the government then that's ok so long as he says no we don't believe it's ok because we don't believe that it's been waived and we take issue with that substantive part of his analysis namely that it hasn't been waived and because it hasn't been waived and balancing that then what i'm losing what is it them what is the constraint other than normal brady constraints on what the what the defense is entitle to when the government says we have documents that are subject to brady disclosure you argue as the author of the document that the government's being too generous ok but what is what is the district court is supposed to look at and say on the scope of the turnover that the report is too broad i said at the outset we feel an appropriate resolution here would be to permit them to use the report and that was that they already have but under the transit terms that would keep it under the protective umbrella of a protective order just as might be the case if we were talking about entering into similar confidentiality agreements with the u s attorney's office way absolutely work product protection not simply to the criminal would be a matter of turning to mccaskill and to explain why the materials were confidential but no materials would be turned over in response to a foreigner request at this time by private plaintiffs saying these materials are in your possession they're not protected because work product protection was waived and we want to see them that would very much very nice argument by all of the tricky case interesting cases i think patients hate to hear doctors say this is an interesting case maybe you feel the same way when the judges say i think it's ok we'll take a break for ten minutes and when we