this is a case where the government came in and intentionally seized attorney client privilege material in attorney work product during the pendency of an investigation what's the support for saying they did it intentionally the first thing they did was they prime the pump by serving in april of two thousand and thirteen a subpoena for records they then came in a little more than thirty days later i in raided the executive offices of foundations health they had a warrant and they did have a search warrant you know so don't say write it yes that why put that word and just tell us what they did raided is a metaphor for something that this may or may not be but we need facts and not coloration of metaphors i doubt this i understand your honor they executed a search warrant on the terms commonly used but by serving the subpoena what can we expect this company do done they went out and gauge counsel to work with them on the investigation work with them on the subpoena and they begin to analyze the issues within the scope of the subpoena the government agents then came in executing the warrant and they targeted the general counsel foundation's hell they went into the general counsel's office and they took right off his desk his file on the investigation the file point the the production or the rolling production in pursuant to the subpoena was not very far along the subpoena itself required a lot of work to comply with  review of massive amounts of electronic material so i don't think the government had much of anything at the point they raided the offices but that fact is not developed in the record  they went right into the general counsel's office they took his file off the desk if that's the only office but they took things from no they took things from other executives the image computers but when they took that file and you can look at the inventory for the search warrant in this case you'll see that they they realized that file was title twenty thirteen d o j stop d o j subpoena we submit to the court that circumstantially they had to have known what they were doing and they took the entire e mail account for the general counsel as well as other key executives who would have been engaging with outside counsel such as the chief financial officer of the chief executive of the company and they did this with a search warrant but they did it without a search warrant that specifically judicially authorize the seizure of attorney client privilege material when you look at the search warrant you won't see any express authorization for the judge ever reviewed it even in camera so we don't know exactly what the probable cause is if you look at the warrant you'll see that this was a health care case that it appeared to involve by the categories of documents they were asking for it appeared to involve questions of whether ancillary third parties contracts violated back that's that's what we can divine from the four corners of the search warrant what probable cause they ever put forward to support what they actually did we don't know other than they never put forth any facts whether in camera or did the district court below that would support an extraordinary need to go aren't attorney client privilege how would they know what's attorney client privilege but just taking documents because the file again has a label wanted to would indicated if you look at the inventory judge hood you'll see that the agents themselves noted that they were taking possibly teenage material but there's a there's a solution to that in there there is a solution the solution we want to get to is the solution in seoul it's the solution the supreme court put forward when the supreme court said that even if a neutral judge does not have an automatic right to review putatively privilege materials there must be some showing by the government to support that it's necessary akin to probable cause that was all camp secret so you had no opportunity that is the basis for the whole operation same strange to me well we've we specifically alleged first of all that they did not disclose to the magistrate judge that they were going after attorney client privilege material and there's nothing within the with the counsel's office and the counsel was in a conspiracy with others in the company to violate the  law concerning bribery and so on that would have been a basis for for this i would think but here you're saying you were never advised as to i mean we've got the fourth amendment does not means nothing in the fourth amendment that says that probable cause should be secret and nontransparent i just wonder what the basis for that non transparency is right right at the point up before the public right at the point we went to the court and said look there's nothing in this warrant to indicate that they've got to do is show authorization to do it and they don't have the right as a matter of course and that at heart is what this is about is where our system is going is the government is taking the position that a on their own initiative can intentionally seize attorney client privilege materials provided they review it from what's called the taint team or they would prefer to call it a filter team and our position is that's fundamentally in conflict with the supreme court's decision a united states versus so on and it's a departure from the great body of law that speaks to the importance of the attorney client privilege in the protections that are given that judge merit as you said in rail it is not hyperbole to suggest that the attorney client privilege is a necessar foundation for the adversarial system of justice the district court dismissed our case without asking any questions the clerk never asked them whether they ever had judicial authorization or provided any information to the judge to support seizing our attorney client privilege and our attorney work product and if solon stands for the principle that a neutral federal judge cannot as a matter of automatic right review putatively privilege materials to determine whether the crime fraud exception applies or or there or otherwise not privilege then the government does not have an automatic right to do it and has been going on here in this case thirteen and you came into the case i came in the case shortly after that they retained new counsel and i sent a letter of the government informing them that they had they had taken substantial amounts of attorney client good faith i think the government talked to me back in good faith but we were unable to resolve this issue for a number of reasons that frankly are are in the record but we are in the context of settlement discussions as both of you have never abused as to what good g motion which we styled the rule forty one g motion or in the alternative a civil complaint for the return of our property why did we also call it a civil complaint because judge merit your case and white fabricating  jurisdiction of one of these cases and said frankly we can consider this either a rule forty one type or seeing or or frankly it's akin to a civil proceeding so so that's what we filed in the core and that's what the district court denied without ever holding a conference asking any questions trying to find out what happened here when you say that's what the district court denied and i'm sorry the district were denied the papers which are in  denied relief in both right i mean we essential what we did was brought a rule forty one g motion which by its plain terms says that a party aggrieved by an unlawful search and seizure or  when the court will treat this is a as a forty one g and when we will treat it as an appealable order and when i think there's a real jurisdiction issue here that was deferred to this panel as i understand it when you have you go when you got a ruling the court said no they don't have to give it back and you have to establish that that is the kind of order that this court entertains and appealed to men the courts distinguish between an order that's trying to get back property and that is really in the nature of the ancillary proceedings to in anticipated criminal proceedings and i understand the issue let me address it for you and this goes to the appeal ability of the denial of the rule forty one motion under the plain language of the supreme court's case and we have the right to appeal this court provided there's no prosecution in essay and the motion seeks only the return of the proper we comply with the plain language on both those terms there is no prosecution in s c there's no indictment pending and there's no dispute as i understand it from the government so you don't have an objection if they just give you bet the originals and keep copies no we've we've asked for the copies back and the issue of keeping copies does not confer a motion for the return of property into a motion to suppress in the sixth circuit said that in sovereign news and it also said it incur what's more than one thousand nine hundred ninety advisory committee notes to rule forty one expects expressly allow for an order for the return of all copies or the certification by the government that they destroyed all copies what what's happened in some of these cases and i want to get back to the you don't sort of the high point and then let me come back to the issue of cases if that's ok but the sixth circuit in more than five cases has allowed appeals from the denial of rule forty one motions this court did it in frisbee it did in sabra news it did it in search of music city marketing it did it encourage it did it in your case white fabricated and i think the six circuit rule is the right rule it's a blight it's a bright line rule that doesn't take it's into a subjective determination or what are the real underlying purposes of these people it just says look if the relief you're asking for is return of property and that's the relief we're asking for and there is an indictment pending  will take your appeal and that's what the sixth circuit has done that's consistent with the language of develop and it's consistent with the only supreme court case that i know that if you're seeking it  is not an indictment pending so without an indictment pending it's a rule forty one motion if in indictments pending it becomes a motion to suppress under the criminal rules so i know o supreme court case that's looked at since it was decided there may be more but this is the one i know of this is the one i filed on monday as a twenty eight chase supplemental authority that's united states versus ryan supreme court decision and what it says is there's a special allowance for appellate jurisdiction for the denial of the rule forty one motions why the supreme court unanimously tells us and ryan it's because you may never get the opportunity to have your proxy the seizure of your and retention of your property reviewed because if they don't indict you you can never file a motion to suppress take a look at  so i mean we school really fit within the rationale of the united states right the ryan to bring this appeal and what's more the leading treatise in this area right miller says that the six circuits rule is right so i will acknowledge there's a circuit split on this issue i think there was a case up in the supreme court where the solicitor general was ordered to respond in a got resolved in then dismiss there's a circuit split but the sixth circuit has to follow its own case law and it's on the right side of the split the six circuits rule is the right one the government of course relies on i've cited five cases and i think there are actually more where the six circuits take in these appeals the government sites one case in re warrant december nine hundred ninety seven we have jurisdiction what would you have this court thank you i think what this court needs to do is two things fundamentally we think you should order the return of the property with an order instructing us to retain it in the government because we're not asking for suppression the government has a right to to buy lawful means to get it from us or third parties in use in other ways a centrally the holding that gets us there is and i think this holding would immense good for our administration of justice is to make clear that when the government is intentionally intending to seize beautifully attorney client privilege materials they need to get judicial authorization there needs was i know it it's not a day to know that i was taken for example how did they know they were taking attorney client because people should be deemed to have intended the natural consequences have a warrant to get the business records of a particular place you're concerned whatever it is you have the warrant but you can take the records but you can't take the g c s records that's correct unless you make  showing that would support something like the crime fraud exception and under a clear application of zola and at that point the government should explain to the magistrate judge why they believe that the in house counsel for the corporation is involved in criminal activity and what the scope of the waiver is under the crime fraud exception because if you look at our law which has twenty two hundred eighty examples of privileged documents they took from us you see substantial amounts of proof of privilege material between other executives and outside counsel and i don't think the government was ever prepared to say that all these outside counsel were involved in perpetrating a crime that's what happens when you start going through it i mean if that's the case then basically every time there's a seizure of materials pre indictment the kurds have to get involved and basically go through the documents you know are our fundamental point to head this off the solution judge white to this problem is to have judicial review of the issue before the warrants ever exit queued so if the government knows they're going in the problem is without any judicial oversight with rulings like the ruling we have here with the district court just dismiss is it the minute the the next one is that we had an adequate remedy of law that what we should be doing is moving to suppress at some later time if we were charged and i explain why ryan united states versus ryan speaks to that were that we should bring a bill of ins action and try to sue the agents in the attorneys personally to to get our materials back that's that was the reasoning the district court acknowledged argument hundreds own but never addressed it never explained how we could be wrong when we say that if a federal judge doesn't have a right without a prior showing to review this counsel but from your firm or other similar firms so in cromwell somebody to do the same thing i know that williams  tried to bring this issue on to the e c so i mean where the government has sought information in the hands of the private lawyer  rather then a situation like this where it's in the hands of corporate in house counsel that's what i meant to say oh you know the situations where for example where really government has search warrant from directly from the lawyers office private lawyer instead of the in house counsel i just wonder if they're making a distinction at least in their own minds between professional lawyers office outside of corporate accounting well i think the the clear response to your question is department of justice policy requires the federal prosecutors to go to washington and get approval before they go into an in house counsel's office or outside counsels here was they they violated that policy in this case they didn't get that they did not get authorization the the reason i believe that to be true is i in this is in the record i asked them to respond they would not respond we put that in our papers they never responded we put it in our papers three or four times they've never give us an answer to whether they violated their own department of justice policies those policies speak to the importance on this issue the other thing i would say in response to your question judge merritt is i don't know of a case where they went in and executed a search warrant sullivan and cromwell but the klitzman case out of the third circuit involves a search warrant executed upon a lawful as you see i've got the terminology right and  thank you you have your thank you good morning me please the court my name is adam hollingsworth and i represent the united states of america in this matter threshold issue that this court needs to decide is whether or not there is jurisdiction and the companies if appeal fails to develop tast because their motion isn't soley for the return of property and how do we know that because they're asking for the return of property they already have they aren't concerned with with enforcing their h of those they have the originals the government only took copies of these documents so they are to happen so what is the truth is untrue that the search warrant was used to acquire our documents that were on the desk of counsel that's absolutely true that is true your honor and that's the limited exception that there were some hard copy documents taken from the attorney's office and copies have been made available to the company in if in case they need them but the vast majority of the documents at issue here are electronically stored documents but your response to that is that you've given copies of the documents b correct correct so what is this motion all about this motion is about preventing the government from finding evidence of criminal activity this motion is about preventing the government from reviewing the content of the documents y what's wrong with that if you go in then you take clearly privilege material why shouldn't there be a way of getting at that well your honor in this case the government had a val search warrant issued by a neutral it into touch magistrate is it does that search warrant cover attorney client materials it covers any response of document that's listed in that attachment regardless of where it's found we have to remember that this was the search  a business this was the executive office of a nurse who tells you understood before and that it was the search of the general office the lawyers office of the company well that's not that's not in the record your honor the agents were at all thank you did a understand that well look let's just be frank with each other here counsel did you know did the government know the f b i know that it was going to get information directly from and did get information directly from counsel's desk you know they were there to search a business and they were authorized to search that business they were authorized to search anywhere within that business the doc that response of documents may be found following this rule that apparently the part of justice has if you're going to go into and and get attorney client or ostensibly attorney client privilege here formation that you've got to get the approval of whoever at the criminal division that the policy is there it's internal d o j guidance if you know that you're going to search a general counsel's office you do need to get advance approval from washington in this case and they've asked us several times about what happened with our internal policies i'm asking you to claim question and i'm telling you your honor the agents did not intend to seize any attorney client privilege documents from the general counsel's office so advance approval was not sought that they get we did inform washington almost immediately after that that's what happened how long do you expect well your honor that's an excellent question and as as this panel has pointed out the search occurred almost two years ago in this where the indictment well your honor it would be it wouldn't be an exercise of prudent prosecutorial discretion to seek an indictment when you haven't reviewed the search warrant documents so the company and that goes to the trooper because you're saying you haven't looked at them no your honor the company sought an injunction with the district court with this court with the united states supreme court tying up the agent's ability to review these was that granted no it was denied you are ok then i don't understand so the agents court denied in the fall of this past year or so the agents have the documents now they've been segregated to create a universe of potentially privileged documents and then a universe of non potentially privileged documents and the the investigative team is going through in reviewing the documents that were not deemed to be potentially privileged you're saying to this court and i want to be clear that about whether they understood they were not going to be searching a lawyers office for information that might very well be fall in the terrycloth privilege here saying that the f b i did this and went into the lawyer's office and and got all this information without knowing all flanking that that might be a problem your honor they were there to search the business for these responsible documents when most of the f go take all the documents of that in the lawyer's office i mean i couldn't believe that that that the department of justice or the f b i would come into williams and calmly or sullivan a crime or any other private law for us and do this kind of well in that case it would be clear that they were searching an attorney's office here they were there to search business they didn't that there would be general counsel's office there you need prior approval let's say that they knew that there were that this particular business did you know that this business had a general counsel there's nothing in the record showing what the agents knew at the time of the search ok well let's say you know that well how do you handle that when you're getting the search warrant certainly if you're seeking a search warrant you need to establish probable cause that a crime has been committed and that and that there's probable cause to believe that the evidence of that crime is in that specific location there isn't a step or a separate or higher standard when it involves attorney client privilege information ok so then you're saying it doesn't matter whether they knew it or not if you go in if a the the agents in this case demonstrated probable cause to the magistrate who gave them authority to search that business and search anywhere what does matter is how the execution of the search warrant takes place to protect the privilege and in in this case i can represent to you it was all there should be a threshold showing of probable cause to believe that there's some reason read in those privileged documents you will find now i'm privileged evidence of this c alleged crime well and so the the filter team that judge gone constructed is exact is intended to do exactly that to segregate out any potentially privileged documents from those that are non privileged and provide access to the prosecution team for only those documents that are non privileged in the structure the judge gone indorsed went above and beyond a typical filter structure a typical filter structure is segregated agents in attorneys who make the decision independently and send it to the prosecution team that's not what this is what this filter structure does it adds two layers of protection for the privilege it involves the company's counsel to to create that universe of potentially privileged documents and then consult with the company's counsel to make sure that the company agrees whether a potentially privileged document i'm sorry it involves companies counsel it does it do so we've got a universe of potentially privileged documents that only the filter team authority for it at the department of justice create said you know what happened yes so in practice the filter teams are very common i can represent that in our office we have about a dozen going on at any given time your office is in the northern district of the have your own and so filled your ear in contact with the department of justice criminal division about this filter teams are common practice across the country and it's in fact to protect the privilege the principle is that that we we segregate the prosecution team from the filter team to make sure that no privileged information is disclosed used against the company chinese wall that's exactly what it is your honor and so in this case so we've got that the typical filter structure with the separation in addition judge gone order that the company work with the filter team to make sure that no privileged document goes to the prosecution team an additional layer on top of that is that judge vaughn is designated to result any disputes so it's not that the government thinks it's not privilege the company thinks it is privileged the government wins it goes over the judge gets to decide and article three judge makes the final decision so there are two additional layers of protection to protect the privilege in based on this court's reasoning  n jury subpoena which was talking about the use of filter teams in the search warrant context approvingly this goes above and beyond that so it certainly wasn't an abuse of discretion for judge gone to to decide that that process adequately protected the privilege and it not only was still army what do you say that is their arguments that's all in ryan and yeah so your honor i say that it's all in is a commonsense gate keeping feature when you're talking about the crime fraud exception in that case it ensures that individuals can't make baseless claims that i think that there's some crime fraud going on here judge why don't you take a look at the documents and let me know what it does say is that you need to make some threshold showing before you invoke the the power of the court to make that determination it's a common sense rule and i think it makes sense but it doesn't do it it doesn't apply to the search warrant context it doesn't apply to the filter team context well why doesn't it apply by analogy in the sense that yes you got a general warrant but we're talking about a very specific context a very specific set of documents shirt so the warrant that the that the government received was based on probable cause that the documents m contain evidence of the crime and that's the showing that that was made and the the agents were authorized to seize any documents that were responsive to that those categories of documents so so they made a showing to it to a judge and they made a showing of probable cause that response of documents would be at this business location and that's exactly what happened when the f b i agents went to the business and when the door of legal counsel surely the of the most fundamental privileges like doctor patient privilege and others that protects the privacy of individuals in this society that we have developed over many years of common  sacred walk and why why should we permit that to be done once they know they are just about to go in and do that without some prior authorization they had prior authorization or are they hey they didn't tell go back and say oh look we've got this problem we want some authorization here is the reason they didn't do that because they just took it they weren't required to they had a warrant to search anywhere well that's the question you're saying it's not constitutionally required that that's what i'm saying or if that was the rule of thumb even if they knew they were going in they wouldn't have to say that right they wouldn't will they have to establish the crime fraud exception just just to be clear there's no allegation that there is a crime fraud issue here it's just that there were responsive documents found in the course of the search and they were seeds pursuant to a valid warrant then why would you just give them back without reviewing them because we can't take the companies word that they are privileged they might not be privileged and so that's what the filter team is designed to do and so if the rule was as the company has suggested then it would incentivize people to just put evidence of crimes in the general counsel's office it's off limits you can't look at it right but that's exactly right but that's got to be looked at and the department of justice got a right to do that their problem is before they go into a lawyers office and take the records out of the lawyer's office that ought to be some authorization in advance on the basis of some kind of probable cause that they are not transgressing only  transgressing the attorney client privilege there would have to be i would think so and of proof that there is probable cause on the question of the crime fraud privilege or something honor that's not all that's contained within a general counsel's office often general counsels where multiple hats in a business and certainly much of the material that they that they create is not covered by the attorney client privilege much of it is in that and that's why we have the film i want to get at all and that's why we have the filter review to make sure that there that the privilege is protected and to make sure and especially with the way that this filter process has been constructed to add the additional protections of the involvement of the company and the involvement of an article three judge to to resolve any disputes it certainly wasn't an abuse of discretion is just not about the question of f b i going in and taking the records from  a lawyer's office of the case when they can do that if they have probable cause to believe that it contains evidence of a crime it's the standard fourth amendment search warrant standard there's no heightened standard when it involves a lawyer the circumstances would be different when they i mean certainly if you were if you were searching a law firm or a loftus there better be probable cause in that affidavit that evidence of a crime is there absolutely well that's what they were doing here they were searching the office of legal counsel for records they were searching a business and they were authorized to search that business you know there are parts of businesses one of them may be legal counsel and that legal counsel is acting under the view of the upjohn case just like the legal counsel it's often graham in theirs and they went right in there and took it off without making they have a search warrant to allow them to do things of the business but they didn't have a search warrant to said you couldn't search a lawyers office at the business they didn't need a separate search warrant they had a search warrant let your view of it that's what we got to decide ok where is the support for that we're seeing you're saying that there's no there's no contrary law that you cannot that when you have a general search warrant for business that you don't well you were it reasonable to assume that records in counsel's office will contain evidence of crime on these facts well yes so the the hard copy documents that were seized i haven't seen them yet but the agents have represented to me that they were responsive to to the to to the categories in the search warrant that they were plainly responsive and so whether or not the prosecution team can pursuant to the warrant whether or not the prosecution team can look at them as a separate question in will be the result of the filter process to use on some of the records of already gone through the filter process the electronically store documents that's one and then the really electronically seized documents so i guess i haven't seen any of the hard copy documents presumably the filter team decided that they were privileged and we haven't seen him right but should there be you have a bar and that is stab which is some sort of probable cause that evidence of a crime is can be found in this business ok so that presumption you any question so the fact that there is probable cause to believe that there may be documents establishing criminal violations in this business ok bad same information that establishes that also support the inference but you will find such evidence in doubt commence generated by you have an affidavit that establishes the first probable cause to believe that documents found him a business would give you information about criminal activity affidavit ok if you're asking me did did the after david describe facts to suggest that the attorney was complicit and i'm asking you under the circumstances ok and i'm not talking about this particular case necessarily when you have facts to believe but the general business records at a particular location will establish evidence of a crime is it reasonable to also infer from those facts that the records of general counsel will also contain evidence of that crime no i don't think it's i don't think it's reasonable to infer that automatically now i know ok now let's put this case was it reasonable to infer that based on the affidavit for supporting the search warrant it was reasonable to infer that based on the fact that those documents were found but is now the new and certain you were a smart man and you can answer my question on no i mean then say yes or no because if you're saying yes so i thought i already answered the question that based on the information that was in the affidavit there was no reason to think that walked into the office then it was general counsel ok so i like that self ok i have a general search warrant that that we were going to find that there's a file here is there probable cause to believe that beth fido has evidence of criminal activity i think that and i often rise to take it i'm asking you to step up it's just that person that probable cause to believe based on that search warrant the bat file has evidence of criminal activity based on the filter agents review of those documents they believe that they were sponsored to the search for this a filter agent in the field yes and so that's important i don't understand that i am very sorry i thought i mean like a regular with the f b i on the day of the search the search team designated filter agents to make sure that if they came across potentially privileged information it would only be seen by the filter agents and i apologize if that wasn't clear no it wasn't clear i'm sorry you know that was that was part of the protections you're reviewing the documents it's actually a u s attorney it's a combination of filter agents and a filter attorney who then works in conjunction with the company and the judge to make sure that no privileged documents cross the barrier this is the first time the government's really spoken about what happened here and many of the things my friend said are not in the record i do want to respond with some points that i think are relevant to questions asked by the court that are in the record first of all when you talk about the fact that information was later determined to be responsive that was found in the general counsel's office you have an affidavit from the general counsel michael provenza which is in the record where he talks about one of the things they took in that file right off his desk was his analysis of the issues in the subpoena which contained material that he would have obtained under the attorney client privilege from employees in the company when he was trying to find out what was happening these agents absolutely knew that they were going to the general counsel's office in the in the record you have the torrie of the search and that inventory makes clear it contains the words attorney office an imprint the seized possibly tainted material they knew they were walking out artists well what are you reading from here i'm reading from the actual f b i inventory for the search warrant which is in the record in this case so you look at their inventory and you know they knew what they did they were doing the other thing they did of all they invented back i said  chose to take the general counsel's entire e mail account now this company head has depending on how you measure it you know a thousand employees or seventy employees in the executive offices they choose five crime that would justify what they did and we've got to remember what the harm is where the district court got it wrong was the district court didn't appreciate what you said in her a lot the harm is the disclosure itself and you're not  that should be disclosed to a neutral magistrate under the constitution in advance of doing that and seek for to do that on the basis of probable cause to believe that the general counsel's office is going to couldn't grab fraud information or something of that kind that's right both material for which there is probable long as they designate a separate group of attorneys and agents and they put whether they put the label to any team or filter team to look at it that cures all ills will that the law is clear it doesn't is this the constitutional right the attorney client privilege is the case law i have seen is that it is not itself a constitutional right but it's closely tied to the constitutional right to effective assistance of coun and judge merits decision and are a lot speaks as well as any i could cite to why this is so important to look federal prosecutors for decades have known that this is the third rail you do not grab you do you do not go into somebodies attorney client privilege and and work product during an investigation this is a line you don't cross except in extraordinary cases well suppose i go into well this might be attorney client privilege it what i did it on the other hand there may be a lot of stuff that has it right but under the circumstances this case where you've put the company on notice of an investigation you've got to be prepared for the fact that if you go into their counsel's office you are going to find attorney client communications an attorney work product and you have to about where you know the government in in executing search warrants on businesses is going to from time to time inadvertently stumble into privilege materials what's the best practice there the best practice would be to contact the magistrate judge and say you know we hit this situation at how can how should we handle it because we have a need to get evidence but we don't want to intrude on the attorney client privilege and go over it but that's not the situation we have in this case this is not a case of exigent circumstances well you know you say there's no just no judicial oversight but it sounds like this judge has ensured that there's judicial oversight where you you have to what the judges said is is go ahead even though the government the government never answered any questions the way they just did here the judge never asked them a question about whether there was any authorization to do this the judge said go ahead with your filter team because these guys can't show irreparable harm the outcome of this case is if if our attorney client privilege material can be deliberately seized in these agents knew they were removing attorney client privilege during investigation if it can be deliberate police seize and we can sure reparable harm then the government can keep doing this ok but then but then what then all you have to do is put your files in the tourney's office because you're not allowed to have a tame team to look at well if it and i want to go i want to go to a point that i think's important in answering your question which is that when the government says our true purpose was about preventing the government from investigating or delaying this thing remember they also served a subpoena on us which can seen the exact same subject matters as the search warrant and we produced eighty three thousand pages of documents in response to that subpoena so we're not preventing them from investigating anything you know they they have all that material pay but they also got a search warrant somebody a magistrate and you're not challenging that and there may have been a perception that they didn't get all the materials who knows but you're answer is that no one should look at this and we should order returned that your answer right my answer is anything that's taken from the g c s office no one can look at it and it has to be returned right that all these material should be returned to us and we frankly the non privilege once we've reviewed we would preserve it if they have some basis to claim that our assertion of the privilege is wrong then bring forth  evidence but you know when you read this great body of case on the attorney client privilege judges before you have recognized the possibility for people to hide behind the attorney client privilege it's one of its costs but as the great body of case also says it's it's a necessary cost to preserving the right to counsel and we are in a situation where agents can come in at any time and take our privilege material and if the district courts were stands we don't have a recourse to challenge it we have a hypothetical recourse at some point in the future but at that point these m reviewed and to challenge this judge will not in order but never we made strong allegations against the government and my friend here is an honorable man and you know i'm not impugning him as a one the judge listen to your chaplains the judge read our papers and wrote in order but that the judge never even held a conference on this matter the judge never asked the questions you asked and you know the two basic errors here in the district courts were one the district court saying that there is no irreparable harm from having your attorney client privilege materials does not square with what courts have said before in in klitzman in the d c circuit case you know in research of reyburn which has to do with a legislative privilege but fundamentally the court missed the point in in or a lot that harm the harm is the disclosure itself and that's the key point here in addition the court gave no i gave notes sensitivity to the to the potential harm the judge box identified