northern district of california and the reason why the judge should be reversed in this case is because the enforcement of this and subpoena in particular the waiver that was imposed by the district court was done so without regard to the fact that there was no is an issue in the case in this particular context the plaintiff has not put it issue in any way shape or form the viewpoints of its counsel which is what was disclosed in that letter in january of two thousand and ten and for that reason one plays the fairness princip look to the context and it says it's early in the proceeding it wasn't in court and looks into value it's the fairness determinate to determine what the scope of weapon to beat this is whether there is a waiver because we're not in this context for the sake of this argument we're saying right now if there was a first of all the target tech most important thing to come out of targets that it's very clear the target tech district court judge did a fairness analysis and the criticism on the appeal by the appellant was boom this is why it is partly  yes you should know that you should have applied these are the district court should not apply to fairness principle to an expressway for that's why it's wrong and this court said no he was right there firm and there isn't the problem we have standing here today is we can't really identify all the variables and factors that went into the fairness it was it was a clear issue very big issue in the case whether or not the offended had the requisite state of mind for current prosecution if you recall software that could be used both legally and illegally for bookmaking he and there's evidence the record that the to reverse and if the errors district court didn't take into account the interests of fairness sounds like an awfully factual sort of totality of the circumstances kind of analysis why would we as an appellate court do that in the first instance especially when we're being asked to stand in the shoes of a different circuit not even our own assessment of what isn't is not fair if the ninth circuit is really not decided on this why wouldn't we at best if you will vacate remain and for the court to take into the very question one of the reason why is because in this context absent nothing on the other side the balance it had a full opportunity through multiple briefs multiple to as you've seen the bloody record down below it's been litigated to death we've gone through since our process the ninth circuit district court want district wide hole which suggests the five o two in may apply because if you look at the statute it said in a proceeding and we made the argument that in a proceeding based on the legislative background in the notes in your in your manual there the federal rules background suppose we agree with you and either reverse or break a demand that certainly gives you a stronger case on the sanctions because even though she compel what were they like three hundred thousand dollars or some hundred seventy thousand two hundred seventy thousand ok but at the same time i don't when we get vacating remand that the reason i say is a court even if it turns out to have wally ordered you to do something a violation of a court order is still sanctionable even if it turns out the court should never have asked you whether ethically it with your ethically out gave take this position if you had disclose the information couldn't the issue still run an appeal somehow or do you think that you would have been barred from somehow appealing the issue of failure that it should is it's your fault you ended up in contempt well it's your fault you know what you didn't you didn't you didn't make the motions that you could have to get the issue before us without having disobey the court order and we did make one motion it was it was said to be procedure the fact of him by the time the thing i they have you as a lawyer it's not like they had some obligation to rely on the letter that was produced to them from we land council they had lawyers involved so why in the world should they get to have discovery once it turns into a litigation into statement that footnote relates to the fact that no longer is there a broad subject matter where you go or blanket way of arrest all the tree claim privilege what they're saying is it's a little it's limited to the subject matter of the disclose communications consistent while consistent with apply and express waivers i think it's intrinsic so that's ok because bill to let's well how about how about the argument that the the disclosure was weighted mediately prior to the fall in the litigation the disclosure involves litigation strategy here's our case just what we would rely on here's what we would sing or you're asking hypothetical there yes and you're asking why in fairness that should be should be extended lightly or should be ex i think because because it was in it because it was expressed and in essence i don't know what situation it was because it was brought forward why would they have to look at will why don't why are they issuing this why were they a waiving the privilege if i would the expression you know that they're as there is no reason to vacate remand they had many opportunities to never put any evidence that would suggest fairness would ever go in their favor in this case i think even if you decide that a fairness analysis is required explicit fairness and also i think in the record there is enough there that the court was very clear that look this was done is an attempt to coerce another party to pay unfounded royalties whether it be premeditation or ordering litigation and it would be only fair despite this was an attempt to we believe an attempt to take in asia company and try to influence them to pay on file on the roads knowing that they were not represented by counsel at that point these letters were turned over to an act exact  and if the we launched business person had memorized the letter and sat down with your client and had dictated the letter but not saying i got it from lawyer and given all the same information license like you know i think you're infringing right in most cases a responsible business person isn't going to go to an adversary and make that allegation unless there's something behind it sure but what would usually what says here's here's our position we think you should be paying us right but the the and only want to encourage that conversely will mean that that could be the same for litigation in actual litigation but the point is i think you know opus answers your question it we didn't do that they actually turned over a fully a full legal opinion concerning legal analysis clearly attorney client privilege information so a solar subjects are not trying to protect the letter they realize i mean they didn't make an in an expressway or because you because it's better says you have full control there's no involvement with the ports in the situation of an implied or not issue you have full control of that wave and you've chosen to waive that privilege with respect to communication is it doesn't your argument that  you keep refer this to the edge of a spear in i see that in my mind but once you go down that road i mean doesn't that argument beg a fairness analysis well as i said earlier because you're saying you were is in not being able to see that they've stayed shown obviously information you're trying time for the nation information that's positive to them and we have not seen the negative stuff for instance you know did they could they actually did they think they have a rule of and basis their claims they make claims of fraud do they have the basis to make those claims were not able to see that and i want to make sure you understand that when i say we talk about certain she'll i'm only doing that conditionally based on your asking to conduct a fairness analysis we believe that nsel so i'm going to give you four minutes because that would make your time equal with his time there hopefully won't go too far beyond that and i think you are if you need it yeah thank you so picking up the last point first  i absolutely had to go and disagree with what he said there's no way in the world that the ninth circuit would say that would be erroneous to do a fairness analysis why did why is that the case first of all this court looked at in re target technologies and saw a district where do a fairness analysis of its explicit  about fifteen days difference between the time the lawsuit was filed and the time of this letter is if the world changes in fifteen days there's no rationale for having a different standard to apply pointed to with respect to the proof that the issue of prejudice you've you've spent a fair amount of time trying to elicit from counsel the point i would want to make is there is no reason to remand this the court has lots of authority to decide things up here when there's no purpose would be futile to remand just pull as you know has left the band she's now ports in their in their decisions that involve procedure how do you overcome that because the issue of whether there's a fairness analysis is not an abuse of discretion standards de novo review it's the scope of review with respect to the privilege the scope