i don't have any problem with your argument that when a person consults an attorney with the possibility of retaining the youth or anything the matter is confidential even if the attorney is not retained regardless of whether the attorneys retained i don't have any problem with that my problem is whether and i don't have any problem with your point that the questionnaire doesn't say this isn't  confidential or waive confidentiality then mention it and so far i'm with you that we don't consult before the argument so i don't know what my colleagues and my problem with it is i can't tell could be that or it could be that they're just filling out a questionnaire in order to provide data for some sort of survey of actual users and  the purpose of the questionnaires together information it doesn't say so that we can consider stepping you with a client or something or that why i know it's described in the in your arguments a over why should we view it that way thank you for your question just as kleinfeld i would like to address that on two points first the district court clearly found in her order after reviewing all of the material submitted that in fact these petitioners were seeking legal representation at the time they filled out these questionnaires and we bound by that i mean were being asked firm and they must and we pick and choose and say we're going to accept this part and it follows from that that we're very random and they must and overturn or well i do believe that that was a factual finding the district court  made but what i would tell you in response to that your honor is that in fact the district court made the distinction that the speedy oil court made which was the distinction between initial and prefer all contacts on the one hand which are protected by the  communication privilege and more substantial contacts which occurred here my distinction was different i was thinking suppose i'm representing somebody in an intersection collision against the highway department maybe i want to do a survey of local drivers so that a whole bunch they all that's terrible intersection i had an accident there i mean reporter just fender bender so that i can prove that the highway department sure that's about the intersection to me this looks like it could be just information gathering well i think there's an important distinction between your hypothetical and what occurred here and i think that the important consideration is from the client's perspective what was the client doing time they this questionnaire we know that these clients are these potential clients of the time who are now clients of counsel had a specific claim against a specific defendant for which there was already existing litigation these petitioners  missed questionnaire that they did on the internet if they were trying to be the firm's clients can you repeat your question i'm sorry how can i tell from this questionnaire they filled out on the internet that they were trying to be the firm's clients well i think that the important thing is not that they were trying to be the firm's clients but that they were seeking legal representation just how clinical that they work and i think that the way you can tell that is by the context of what was going on again these were people with specific claims submitting this information to attorneys that i'm not forming an attorney client relationship you don't have to form the relationship but they're also specifically saying they're not requesting legal advice that's the first thing that concerns me the second is that on the first page of the questionnaire   vice people to fill out the form if a loved one has been adversely affected where it's even a third party it's not even them seeking something about themselves it's just contacting well maybe my brother or my oh ok he was on the oregon supreme court i apologize as anyone will tell you there is no justice with the nicer ok well i hope you'll grant me some leeway this is my first argument front of the ninth circuit this morning by thank you judge judge graber and again i would like to address these in reverse order first someone is allowed in fact this happened with one of the petitioners petitioner barton who is allowed to engage a third party to assist them in attorney client communications as long it's as long as it's for the purpose of seeking painting legal representation in fact i think that that's codified in the california evidence code section one hundred fifteen so it's not one hundred percent required that only the client communicate with the attorney client can trevor in fact there's a difference between requesting legal advice and seeking legal representation for instance there was hundreds and thousands of these questionnaires that were submitted to counsel these were people that  clearly were counsel didn't reach out to them they reached out to counsel through this internet website the difference between seeking legal representation and agreeing not to request legal advice is something very tangible and in exchange you have to give me legal advice in fact under the speedy oil case the rendering of legal advice is what creates the attorney client relationship which triggers all the duties of loyalty and  loyalty and also triggers potential malpractise liabilities which the can i ask you know this was a lawyer designed form for five a technical question this thing that appears where it says yes i agree this does not constitute it's got a check box next to it and then an astros normally in the computer world that means that that has to be checked or the form won't go to your firm right i believe that's true what was the purpose of that paragraph from the law firm's point of view i think the purpose of this paragraph is twofold to talk and first i think it protects the attorneys and to be quite frank with you we were concerned at the time about statute of limitations issues before this questionnaire went off on the website we were inundated with hundreds of telephone calls from people who had these types of claims we were concerned that we weren't going to be able to respond back to these people in sufficient time to protect them in case they had some statute of limitations problems so i think the purpose of this is twofold first to be clear that there's no attorney client relationship that's formed which would put council in a position where they're liable for a possible statute of limitations problems in the event that they didn't get back to these clients in a timely manner the second part is i think it protects the client's expectations these clients need to know that they were hiring an attorney at the time they submitted this information so they wouldn't sleep on their rights to that they would go out and seek other counsel unless they heard back from the law firm does that anywhere so that the information conveyed is confidential no in fact it doesn't mention confidentiality once and that was the error with the district court's order in california it's presumed that communications between clients and attorneys are confidential it wasn't necessary that this questionnaire or this disclaimer explicitly state that the information would be kept confidential and i want to point to some of the information the district court had in front of her when she made her ruling in fact this questionnaire asked for very personal medical information and for instance it asked if the the potential client submitting submitting it had a suicide attempt or suicidal behavior and asked whether the potential client experienced any miscarriages and asked for the mental health history including let me ask you about about that  one a confidential communication is made to a lawyer and it's covered by the privilege it's a two way street the lawyer can't make a disclosure so if somebody came into my law and said i want to get a divorce and i'll tell you all these terrible things my husband has done and that we've done and the issues in custody and i say look i don't do divorces i have them divorces in years i don't want you i'm not going to represent you it's still confidential i can't tell anyone that's correct personal stuff just like this now or receiving the questionnaire accept it as binding upon them that it was secret and or have they felt free to disclose it to expert witnesses to other lawyers that they might subcontract the cases out to without the expressed consent of the client in the individual case absolutely  honor this information was protected as privileged information it may have been disclosed at some point in time during the litigation to people that were within the sphere of the privilege for instance co counsel in the litigation who are within the sphere of the privilege or in some cases information under oath through in a raga tori's in depositions that information was that was learned through discovery was transmitted to to the experts in order for the experts to evaluate the case that actually was going to be my question their medical history becomes relevant and becomes discoverable by virtue of the fact that they have brought a lawsuit and i understand that there is you know a principle involved but i'm not sure what it is being protected that's different from what is already known about each of these individuals because all of this information would seem to me we discover a lot about each of the point anyway i think that's an important question judge graver and in fact the the supreme court has dealt with that's precise question in mitchell versus superior court in the mitchell case the california supreme court said that factual information not just legal information or legal advice but factual information which was transmitted from the potential client to the attorney during the course of that initial comp consultation is protected to the same extent as anything else there's no distinction made in california between that factual information and any other  i mean everybody's doing this it seems like a very theoretical fight correct in fact what j f k indicated in their papers is that the purpose of this information to the drug company is to test these petitioners credibility they believe that in fact these responses that the petitioners gave at an earlier stage of the litigation might reveal some inconsistency but they're not arguing that at all that in fact they're going to learn some new information through these questionnaires they have the questions that were  in the questionnaire because they were provided with all of this information that a prior time in the litigation and in fact during the course of the deposition of these five petitioners both sides were basically either looking for protecting against statements that's basically left i think it's more than that your honor i think what petitioners are arguing is that their fundamental right to an attorney client privilege or confidential information they gave to their attorneys is absolutely protected from disclosure this isn't some sort of hypothetical exercise this is an important attorney client issue that these petitioners are asserting here your honor and in fact i think the district court sort of almost cavalier this questionnaire to every plaintiff and gotten the plaintiff's responses to the identical questions perhaps the identical questionnaire and the issue in this case is whether they can get the responses clients made to the identical questionnaire on the internet to see if they were inconsistent i would like to answer your question just as kleinfeld and make that my last response until my rebuttal if that's appropriate in fact yes this this information is protected by the attorney client privilege and she had plenty of opportunity and in fact they did exercise their opportunity specifically at depositions to ask these petitioners all of this information whether they did it verbatim from cuts against their position rather than favor yes i do argue that thank you about the medical history of these four plaintiffs but keep in mind and you want to see it again because excuse me judge i couldn't you want to see the same information again this form for what reason because the claims in this case are of unspecific subjective medical conditions any case i kind of like to know what my adversary told his lawyer before the lawyer would share them unfortunately i ordinarily can't find that out i never find out so why is this any different well this is different because the responses to those questionnaires were district court held or not protected by the attorney client privilege learned by the actually that the district court had one reason which was for two reasons i think that were clearly wrong one is that the questionnaire doesn't form and it's turning client relationship and another is that she thought there was a waiver of confidentiality but it never says i waive confidentiality so that she doesn't have those reasons now i think there's another reason that is really at issue here and that is is this an application to be represented is this a client feeling out a lawyer for potential representation or isn't it how can i tell judge kleinfeld i think you've put your finger on the key to this case there is no question as you stated at the beginning of the argument that under the initial consultation rule communications through a lawyer from a person who's seeking legal representation are privileged even if no representation actually results there's no dispute about that rule that rule does not apply in this case because these four people at the time they submitted their responses clearly were not seeking legal representation my colleague during his argument twice said that these are people with specific claims that's there's nothing in the record that supports that in fact if you look at the appendix page one hundred one and that's the deposition testimony of one of these plaintiffs gerry marron and she was asked about the questionnaire and she said i thought it was part of a class action and if they needed me call me here and there is now an attorney client relationship with those who are claiming the privilege what is the information that's in this record sufficient to that lawyer your honor my view would be that the burden is only under nine seventeen to show that the initial consultation rule applies here because these shiny case and the court in that case squarely held that that that section of the california evidence code puts the burden on them to show the existence of the relationship and only then does this presumption works under fornia law and i'm simply saying that the key issue of whether these people are seeking legal representation at the time the burden is on them not on us but in any  we're in federal court and this court held on march thirty first in the burlington northern case that to claim a privilege it is not sufficient to make a boilerplate or blanket refusal to produce there that was a very different situation that the case in fault this situation in which documents were claimed to questionnaire they have not submitted any evidence in support of their position these cover sponsors these questions were never listed on any privilege log their response to our rule thirty four request counsel let me ask you about a couple of things from the depositions andrew barton says that age eighty one of his deposition that his purpose in submitting the questionnaire was to quote get into the class action your honor i think that's correct i don't remember that exact quotation but you're obviously reading out but let me say that i ever filled out any questionnaire concerning class action can bornstein is asked asked at page one eighty six of his definition did you fill out a questionnaire for your attorneys on the website answer yes i did  as you accurately quote if say i answer the question on the website i thought it was part of a class action lawsuit and if they needed me me call and then main thaller says i would have filed the information for the class action lawsuit when i went to their website but your honor all of those deposition responses mark completely consistent with people who just think they're responding to a survey looking for information about the class none of those deposition responses are the responses of someone who's saying i was looking for a lawyer i call your law this and make an appointment don't tell the name disclaimer and i fill it out and i walk in and hand it to you and have a discussion with you is the consequence of that clipboard that i filled out privileged judge i think that the key to your hypothetical is what's in that discussion assume a case for that's the entire contents of the case that's all we know is that i called your office i didn't say why it was coming pointman is scheduled i fill out a form it doesn't say on it what the purpose is it does have this disclaimer i walk into your office i hand you this we have a discussion the contents of that discussion are unknown it turns out you don't represent me after that or you do is the contents of what i filled out on the clipboard privilege judge i would say that that is a much closer case because there's a big difference between making an appointment because see a lawyer and filling out a questionnaire on a website that says this questionnaire is seeking information about potential class members and i can buy a new mercedes on online i don't have that the disclaimer on this website in the description of the questionnaire itself is just inconsistent with their claim that these people at the time they responded to the questionnaire were seeking legal representation  sounds like he's trying to sign up with a lawyer well touch point but i'm not sure i agree with that i think that sounds to me like he wants to make sure he's in a class rather than opting out on it's not it's just not only let me ask you something a little different has a class been certified oh no your honor the district has twice denied russians for class so there is no class at this point there is no class are you seeking all ten thousand and ten thousand of these filled out on the internet your honor i don't know how many there are you taking however many thousand there are are just the four for the morning well judge i think at the moment we're seeking only these four named plaintiffs but i think the ruling of this court way you're going to after all if you're all in our favor i think we'll take the position that absent some special circumstances none of the responses to these questionnaires are privileged but i can't speak to the circumstances i'm thinking we know at least on my reading i realize you can argue this we know that of the four one i really thought he was trying to hire a lawyer and one of them sounds like she wasn't of the ten thousand  if it's like these four there's going to be perhaps similar ambiguity so we won't have any depositions where they say what they thought they were trying to do well judge we might or we might not have deposition you i had thought initially when i got this case that you were trying to get the ten thousand and that you're going to get into a professor to do some kind of statistical examination and show a random relationship between claims of symptoms and using paxil but it sounds like no that's not it you're trying to get the questionnaires of people who've answered the same questions for you to show that they gave different answers to their lawyers well and judge makes perfect sense these statements on this questionnaire either by the person who took the struggle or by one of their loved ones are the most contemporaneous statements we have you're in many cases nothing to do with whether they're confidential your judge you're correct it has nothing to do is whether they're subject to the attorney client privilege but it does go to answer judge groupers question as to why a guy can come into a lawyers office and say i actually committed the murder that i'm charged with and then he can get on the witness stand and lie and the lawyer does have various pts precautions he's required to take under wraps but was it nixon or something a supreme court decision of that fact case but he cannot get on the stand and testify my client told me that he committed the murder your honor you're exactly right and the reason you're right is because of the initial consultation rule and the question for this court is does that rule apply to these responses and i'm simply saying that there's no evidence in this record that any of these four people or judge i'm sorry couldn't you know because to submit the responses they had to check the box as you pointed out saying i'm not seeking legal representation  clear that the burden is on now to show the facts that support application of the initial consultation rule if i may you know there's one very interesting part of this case and  privileged that's one third of the firms one firmly for the braze are here in san francisco is that the other side and says we promise you that any information you send us we will protect as best we can under the law i have another question for you even though there is the disclaimer i agree that the above just not constitute a request for legal advice it would seem to me that other parts of the but what i'm saying is forget about responding to the questionnaire just the questionnaire itself already give at legal advice past tense to the people who are filling it out i think judge that those statements on the questionnaire have to be treated like the general statements that appear on any law firm's website about the nature of its practice and what it does but let me point something you know something that's totally absent from this disclaimer and the questionnaire is any statement to these people go talk to a lawyer there's no statement like that anywhere in this questionnaire or in the disclaimer and as far as the record shows which is totally absent that that's interesting because going back to miss menzies declaration of the firm she served including my own fifteen of the more than half have a statement that says go talk to a lawyer this website does but most law firms a majority as shown in the stock liberation tell those people you need to talk to a lawyer this that's not stated on this website and i raise that because i think it's goes to this question of seeking legal representation this website really is almost designed to make people think that this is all they're doing is collecting information about a class action and then doesn't make this response privileged thank you thank you y would like to respond to just a few points first i want to bring back this whole legal representation discussion to the client's perspective and how the way perspective can know what he's that's from the client saying i thought i was trying to hire a lawyer it  wasn't necessary your honor there's a presumption of confidentiality when these petitioners submitted their personal medical information would have been so easy if i had four affidavits sitting here in my excerpt saying i thought i was trying to correct that's correct you have the entire record from the district court thing that makes this hard is it's kind of cute it says it gives legal advice like don't cooperate with the drug company and then it says basically that you can't sue is if we're wrong but it won't take responsibility for it says i agree that local counsel may be contact which i suppose means a disclosure and it is it doesn't tell you the purpose of this questionnaires and in think questionnaire the potential clients of our firm it doesn't stay if you want to be represented by our firm fill out the questionnaire it says the purpose is to gather information about potential class members say potential class members represented by us for all i could could tell from th his questions regarding what these petitioner stock they were doing when they submitted this information before i went to law school i didn't know the difference between a mass tort and a class action in a personal injury action i thought they were all just legal actions these petitioner stated act their depositions and in fact this questionnaire buttresses the point that in fact they knew there was pending litigation that we call the class action but i don't think any of these petitioners are have any legal training and would know the difference between what what that shows is that in fact these petitioners were seeking legal representation of some sort i don't think it's important that it has to be defined the specific type of legal representation they were seeking i think it's a general analysis from the client's perspective from a lay person but is that actually that they're seeking legal representation it doesn't say it doesn't say that they're not seeking or seeking legal representation anywhere in the questionnaire your honor i think that that's judged by the circumstances of what occurred here these were people with a specific claim against a specific defendant who sent seven pages of personal medical information for which they clearly didn't want to be broadcast all over the world which would be the effect of this district court's order here information about suicide attempts mental health history and miscarriages would be open for the public to see if this order were to stand there is no way when they submitted this information to  your honor summit police the court i'm robert g ryan crow the petitioner's i guess you can just say long well long it's yes your honor indeed we can our all sail are all chinese christian female in the nation's entitled to asylum in the united states judge clientele i believe there has to be perhaps some showing of particularized risk  conservatively and in the sense that along with seemed to indicate that one could simply be a member of those particular just favorite subgroups and receive asylum immigration