council still morning since you're both here come on up please we know you well but these are introduce yourselves again for the record g twice this is best for the affair especially when the record came back electronically and it was all out of sorts with the original paper record so thank you for all the work done on this case to get us to  they committed to withhold those documents use them for summary judgment and still claim privilege and without a waiver on the under the law under roberto and the supreme court cases there are no exceptions for communications there are no exceptions for privileged acas and it makes sense because there really could be if you get past this case they take for example on medical malpractise case where you've got a medical studies act for example which has privileged peer review so if you not allow the privilege documents to be used but not disclosed then someone on the defense could look at the peer review look at the cruise documents and say well i'm not going to show you the privileged documents but i can tell you need to trust me i've read them and i and under one name what the evidence has to be admissible evidence so you can't have secret evidence or secret documents or secret opinions that are not and miscible if they're not that argument we need to reach this other stuff well might i would say if you think they won the day on anything that's certainly something that he would do but yes they would still have to have all of the after all of the evidence is in all of this care reese completed we have not completed a separate from my perspective and i said that that's that's grounds along that because it's a celtics motion saying you haven't yet proven your case i was required to prove my case at that point  if they're saying ok it's not a celtics motion which is why i've been moved to well ok that's not a celtics motion and that's how you're going to prevent me getting this discovery well now let's focus on what you are affirmatively doing and what you're from to be doing is fatally flawed so that's how you get past  that that st bar is because state farm themselves said it's not a celtics motion i believe it was a strategic decision on their part because they didn't want me to have the other discovery and undersell a text motion they would have been subjected to more of this discovery that i was yes i don't have that at my hand at this moment but that's ok but yes when you look and i believe i believe the st time they say that is in response to my motion for additional just covering and there there were two motions for that so it might have been in their response if not it was in their reply to my response on the summary judgment and also i believe in the briefs on the st appeal because that that was at least addressed and th i was actually getting some of the discovery from a day that i had previously wanted a lot of good information came forth and that for certain you've been helpful in preventing summary judgment so the failure to comply mention it i certainly understand that waiver is not binding on this court but you certainly have the power in the authority interstitial to look at things that the parties might wait but i do point out that state farm would have way disagreement and i think that's important to know because the only time this argument of confidentiality and use of privilege documents are fair to comply came after they were directly challenge seat far throughout this case when presented with things that are not favorable to them they just ignore the issue and it wasn't until they were directly challenged on that issue that they came up with privilege but i would point out that seem to be just ingenuous because they never claimed that the trial court the st appeal the nd trap  rest well let's assume that that's correct they didn't attach the non privileged portions either that that's one of the other reasons i say this was sort of a and after the fact that you know there were not privileged portions would have really came down to it i was arguing and had been arguing from the beginning hey you know i'll stop this train there's not compliance here and that was the not a failing to me and so they didn't they didn't because they were never forced to but they never claimed that the reason they didn't attach it was privilege and the only excuse before the oral argument the last time we were here that say from ever gave was that it was too clueless to do it and that they did in the their response brief on the st appeal and i think it was even maybe enough footnote but it was towards the end of the brief where they said oh and by the way we'd give this just two balloonists we were trying to be nice to the court counsel by not muddying up the record  and that was the only excuse that we have ever heard to why there was not compliance and show we were here and then on the privileged aspect there are the at issue waiver see for him to not have to found out for documents they're relying on campeche information why they did that i can't answer but they weren't required to do that there was no border this or that they decided this is our best way to get summary judgment to use privileg  whether they could use it it's saturday and also whether there would be a protective order entered so it was really during this argument about the protective order and that was a couple of status hearings before judge billy and at one point that was suggested will going to clock back what you think is privilege and now anybody else do it and he said don't do it that's it's just impossible and he went on about some case he had i don't remember specifically but it was just really cool said that is step if they give me this affidavit and they're going to get my strategy over to looking at the affidavit and i'm going to forget to ask the questions that i really need to ask in my very limited time frame so to me it was sort of like here's your road map gray says these questions and ignore the things that  discovery in a civil case but there actually is no rule that makes us do discovery and you can file a summary judgment before you file an answer you actually can do it before there's ever any discovery at all so steve farm claims any claims of well this is scary was a downer she didn't follow up with that or the plaintiff didn't do this or that it really is immaterial because there are more for summary judgment has to stand in the sun if we never did any discovery that motion for summary judgment had to be able to stand on this song and without to look at the timeline of this case and there was a very important exchange between the trial for work and plaintiff's counsel that i was overlooked and that it was after four years of litigation and a series  discovery disputes with the court said what more do you need so there was this challenge to the court that somehow or another this case was improperly managed because if there was an unofficial case management order but clearly the court was allowing discovery ask basis and said what more is there to be had here you just counsel identified our what what was required place counsel received that information there's no dispute about one would know from firsthand knowledge whether or not there was a reporting of the misconduct that slides you would have to look at your files to identify whether or not you were ordered to stay for the misconduct that's admits that she never moved to compel any further info mation are testimony from o regard to all day that there was any sort of role would go problem and that is in the record it does take some effort to read it you know many many motions to find the axis of bad argument way because when you say it doesn't happen you have to attach the documents reviewed the answer is clearly no because the f b i role in many cases will review thousands of documents hundreds of thousands of and they didn't they didn't say what i like and what you're asking for and then remain silent and not produce that document i don't think anyone would ever be allowed to testify about their reveal vacuum and without those documents being seen by someone else there was no motion to compel filed against the corner of her view there was no motion to compel filed with regard to both for the victim testing to determine whether there was a motion to compel we're here to determine whether or not that kind of evidence regardless of whether there issue doctrine so what you're saying here's our bet that state farm would be required to attach or disclose not relevant privileged information and the answer to that question will  whether it's not relevant privileged information in here reviewed by the court or just simply the witness saying that this is privileged and i can't disclose it therefore i don't have to say anything at all of this issue is i there's nothing there and therefore we're entitled a summary judgment i don't see how this would be allowed to testify about documents that they reviewed these same have there's nothing there there's there's an absence the two are papers that would have triggered plaintiffs burton to come forward with some evidence to support this this conspiracy theory and there was none were now i'm coaching ten years of this litigation there's there's nothing showing any sort of conspiracy and and your honor just the justice alice wanted the anal to be divorced from the privilege you can't do that here because what you would be requiring is a waiver of attorney client privilege i specially in the context where there is an conspiracy at issue they need to refer to do i trust her back and to require the waiver of that privilege and order to rebut that allegation is neither fair the case i mean if you could just on the street sell a text for example i can see that now that would be something you know i'm not turning over a thing but i'm saying you don't have the proof and then we could argue about whether or not you know she can get discovery all that stuff but  day's documents are not attached as the court knows additional you know days credibility was severely compromised as thirty in the deposition and then what we now know is the ultimate sanction for misrepresents misrepresentations to the court but even before that was entered in his deposition they were just flat out on troops and whenever you have to we deal with credibility that all exactly it was my next point and whatever you have to look oldest to well what i'm saying is that whenever you have to look at credibility you can't grant summary judgment that that's where i was going with that is is that you can't look at credibility and says it was and there are i think there's some case of a basement somewhere in all of these priests and that was a point and that you can't look at that ability and once you've got a witness that it's not t you need if the court is impressed by that at all the actual reading of the transcript you'll see that what was happening is i was again requesting this additional discovery that they were calling class discovery that i kept saying was no it's really the proof of this conspiracy  and the coordination of these two defendants and judge could see him very nice he said were you not getting that and i said ok and he said well what you need in light of that so in light of his telling me i'm not getting all of this now what do you