are facing the death penalty the opponents and a number of other co defendants agreed to enter into a joint defense agreement that drug offense agreement occurred both in new mexico and in arizona after the case was transferred from internal client privilege is clear in the attorney client privilege we do not look for talers monica rules of this like a list of what is and what is not protected we look to see whether the elements of the privilege are present in these communications and that fundamentally is what the opponents are asking the court to do so the question becomes whether these communications were exchanged in confidence and whether they were exchanged in furtherance of the joint defense well y there for purposes i agree that that's that's not the central issue that's the central issue is whether they were made in furtherance of the joint defense ok and who better to say that person who has the burden  strict conditions access to them is very limited so in order for us to i mean in order for us to get this information it's not as easy as it is in a corporate setting when you can call you know there's there's no problem with access to the defen here we had a problem with access and it was determined that as part of the joint defense strategy that we were going to need to gather information and that the only way that we could gather this information was to have them exchange it and get back and get back with us  x and to report back to you you would know you ask him to do that and then he reported back with respect to a particular subject matter that you would have a log of it and you could come into the court and say your court is what happened so this communication i agree with you that that that certainly would have been a better and more orderly way of conducting this however we did give a direct a very similar to that and i think the fact that we didn't keep a log of it and we didn't keep tables that it would be a fine line to draw between between privileged and non privileged fin log probably of all the communications that were made and that came back to us but i do not believe that that really unhappy people log actually question i guess whether there was any counsel and all defendants members of the joint defense agreement and as part of that joint defense attorneys told the defendants that we need you guys to talk we need you guys to talk we're not getting the information we need we need more information you guys are our best investigators and i think that that's a useful way of thinking this because there's plenty of cases in the joint defense context where we say well communication between a dependent and a co defendants investigator is both because of the limits of memory i mean this is this is also in addition to the fact that this isn't confined that this is also over a seven to twelve month period that we're talking about we do not know what we do not know what  to do that and that we we forgot communication or we didn't have we didn't we didn't have a lot of that communication would with that with that and this is i think what the question of the court is asking that constitute a waiver of that privilege claim and proponent of the privileges burden to show that a particular communication is privileged and i don't see anything whether by way of  of any counsel for the purpose of securing any legal advice on any of their parts so in the absence of any indication to that effect what's the basis for any finding any privilege because we know that there is a joint defense agreement and we know that and we know that that the defendant told the i mean i'm sorry that the attorneys told the defendants that they needed to this is in a joint defense meeting protected by the joint events agreement that they needed to go out and they needed to gather this information so so the fact that we don't have we don't have that we haven't asserted that that able to assert that privilege so the question on appeal is whether the court properly ruled on the scope of privilege privilege issues this court has been clear are immediately appealable because for one thing i mean it's the one thing cooperating defend i just i guess i'm sorry i just don't understand why there's not a controversy i can understand why we might not have jurisdiction but for that reason i'm having trouble ok what their theory is that is as a blanket assertion of privilege which both this court and the down and say ok we find that there actually is a privilege in this communication because this court has but we could say the district court procedure was wrong i'm in the district court should've required the government to go first and and we have not been able to speak to the cooperate or for nearly in a year now about important information act cooperate or wishes to provide with respect to murders and other crimes that were committed and the united states position at this point that few parts to that answer the first part is that the issue wouldn't be resolved at this point because all that would happen at this point would be that this court would send it back down to the district court and then we would have litigation over the discovery issue that the defendants are raising with this court that the district court has yet to address we would be there with no privilege if you said that there was no privilege and then that would conclusively resolve the answer yes your honor the answer can be decided now and the negative that is that there is no privilege but it can't be definitively decided in the positive at this point that there is a privilege and that's because the court has the circumstances of the communications before now but it does not have the actual contents of the of how crimes were committed details of how various crimes were committed and that's exactly the type of information that could easily be suppressed you know there has to be a retrial in this matter and in this case because litigation has any information the government learned as a result of speaking to cooperate or so this is not the type of situation where the cap would be let out of the bag and never could be put back in the facts of these case or the facts of this case is is much different and that's exactly what the defense i'm done now they haven't identified any specific communications that only made a blanket assertion of privilege and you discussed the common law the supreme court's made clear that privileges the government has indicated that the court can rule that there is no privileged i would ask the court to carefully look at the record it has before in determining in making a determination as consul that if there was a trial in this case but the harm is there a rule applies that's why we don't permit combatant of feelings because because if she was in error we would have to strike the whole may be a small percentage of communications that that that when they do fall into that category that were made in confidence and and serving the joint defense strategy as directed by the by the  am not sure what you are saying is the basis for the privilege that would be appropriate is that all from that one meeting is that the only thing we're talking about that that is the only time at which we believe there could be strong communications that may be protected by the privilege and so that would be one thing that we would look for if that if the if the if the government gave us the information that we're sort of privilege the fact that we were operating under a joint defense agreement and that we told the defendants as as attorneys after speaking about the strategy and there's no doubt it's a question of strategy as this case is demonstrating  the defense to do so how can we decide if you can send it back to the district court and with instructions to have the cooperating witness give us information about these run the courthouse but i don't believe it's either a way to run the courthouse to just defer completely to the cooperate as account of what happened and not give us the opportunity although i acknowledge that we certainly could have done a better job of recording these communications ourselves i just do not