recognition that state law can still inform federal privilege law yes that is correct in the interests of comedy in federalism we we don't just look at whether there's a federal privilege and what it is and what is its bread but we can also have it informed by parallel and similar state privilege yes that is correct so isn't that appropriate here wasn't good appropriate here for the district court should do it if so is the real issue here applying federal privilege rot the court can look to state confidentiality statutes to inform that it is clear looking at the court's resolution of the issue with the court did not look at that in kind of an interest  balancing analysis rather what the court ran ahead and did and with the final application of that would have occurred in december or on december thirty first twenty fourteen record kind of reverse field and run ahead and actually privilege for the disclosure of communications between the patient and then the records and that record in particular or so it's page and with as we came forward i looked at the mines away cover but the blue color brief that you had i need a copy of that's right better right cover and saw no reference at all so the m h p a argument as i prepared for reason we don't think there should be and during that time frame this issue of partial waiver and what that means had been raised i said we'll get the mh p a a look at the pennsylvania psychotherapist privilege look at rule five  and under all those collectively these documents should not be discoverable if you quote reviews the trial judge's december thirtieth opinion again which is after that and i think it was oversight on natural ride but the point is i think it was clear it would have had that with the blue reef we may not have had the questions that the court goes for counsel to be prepared answer because i think the trial court has address them and went through it analysis of both the federal privilege and these other statutes and concluded that there had not been to their satisfaction again an abuse of discretion standard that the some documents or meet his counsel and plaintiff's counsel and they were to take a record for just a number of other records historically from i think county agencies that have dealt with them this is the ninety pages it counsel referred to a moment ago  anybody talks about there's a lot of historical information there that was in those records but could not find that there had been a complete waiver by mr madison when we became involved in the case received written discovery we said isn't this privileged hundred thirty federal privilege that came up madison this counsel said yes we agree with that and then we get into this issue of whether but it happened before we were involved in the case somehow was court's opinion with regard to that we don't have a written waiver here we have a court's analysis of what happened at a deposition in documents produced in conjunction with the deposition and it can luzhin that the only way we can resolve that is to view that as a limited waiver with regard to those documents but not a full blown waiver so as to prior my client to produce fifteen hundred pages of records many of which well appreciate the point in time where th could recall and the facts are back in the record mr madison was in the care of my group from about two thousand and seven to about two thousand and twelve fifteen hundred pages of records involve psychological meetings  s counseling records things that date from the point time he came into our program until the point in time when he finished with our program so too for a position from where i stand in our sit down number one we agree with the courts question just raised earlier the issue of any h p a was not preserved at any point that issue was mentioned when you look at the opinion of the trial court that i represent that mission was mentioned at that point in time there was no argument made by  counsel at that time a who're that doesn't apply to this case appellate grecian written no reference to it until we get to the grave breach which we agree with the question is posed by the court we think it's too late and therefore wa what the lower were said and then said in addition to that the n h p a a provides protection we think this is a jaffe case there's been no wavering there for our records are not discoverable and i just wanted to reference was reasonable under the circumstances and indicating that there was a limited waiver with regard to parts of the report and that other parts of the report worth tex that there is a concept in federal law which deals with partial waiver and i believe that that would support the trial court's decision here when up when a party who has disclosed a portion of privileged  communications can continue to assert the privilege even though they have waived other parts of the documentation i would also suggest to you that if you read a fair reading of the deposition here of diagnoses or or anything like that with regard to the affirmative defense that that they alleged in front of the fence is something that we raised with respect to the punitive damage claim here and i  these mental health records their expert indicates that there were but these documents that there was no evidence to suggest that  indicated anything about mr madison to the school district which is inconsistent with their suggestion to the court that if only we had these fifteen hundred pages of documents that that although i note that my able colleague on behalf of the plaintiff has spent very little time on the substantive actually actual substantive claims except to discuss the shady and it's progeny are a little bit so i'll start there unless the court has any questions ok the judge miss you pointed out right right right out of the gate that the shady and and the the l or r and bright they're all very tough standards all involving oddly she is may it was that the only person that had any knowledge of any substance of this young man's proclivities was the assistant principal and with respect to him it was sure that was a well it was a one time incident and it involved talking and not touching as it turned out at least based upon the investigation so it's a vastly different circumstance than the eleanor case where there were months of and of course the final case right where this similar situation and even more tragic result we don't have any of that here so the what the court did in this case standards are so i and all of the all of the proof positive is is so unconvincing so weak as the court pointed out i think what my neighbor colleague would point destroy attention to is the placement of the child as as close as they can really get because none of the teachers knew anything and so if they didn't know anything how can the placement of the child be an issue simply put it can't it i'm not suggesting for one second that this isn't tragic no there are no winners in this case for sure but i would say that we can to me the one issue about which this court has been most interested in the discovery issue in the waiver issue i would i would simply point this court's attention to the de issue that the school district lines itself in with respect to the other folks in this case and that is that there is still no evidence that the school district was ever placed on any notice so on less these documents themselves to the extent they're produced  a hardship we need these documents to make a tight case under the heightened standard which you have correctly referred to today i believe we still have enough to get past summary judgment where we are but even if we do when we get