served as our chief judge and just james dennis previously served many distinguished years on the louisiana supreme court we have had quite a variety of cases this week criminal civil and sort everything in between may please the court my name is susan starr and i represent the equal employment opportunity commission as appellant in the subpoena enforcement proceeding the district court ruled that a party can withhold relevant communications under tourney client privilege if it simply shows that the communication involved an attorney that is not the legal standard the commission requests the score to remained to the district court to require b t l to show that each part of each of the over two hundred communications at issue properly fall within the privilege b t o can do this by making a clear showing that each communication in its entirety was made in confidence to a lawyer for the primary purpose of seeking legal services or opinions are limited to this they started out what a pretty big universe of things i've got the log you know we've got the log whatever number i thought of recall that some juncture things it narrowed down to some point of which you couldn't agree is a correct oh right there were there were arguments about relevancy and all of that and some right so now the only issue before the court has to do with attorney client privilege so it's been narrowed down to these two hundred twenty eight issues in terms of this appeal are seminal legal issue here for us to decide it's cetera et cetera i mean we're basically you're asking the fifth circuit to referee you know what discovery matter you know which is not to say we're too good for it but it's just not the usual stock of what we're doing i'm not minimizing your argument about privilege and all that but i had bottom we had to measure a judge to look at it measure it just says no i'm not have a name camera here and district judge on a bench for ever you know affirms it right so then it's up to us so it's not the end of the litigation so whatever we say we've been asked to referee discovery sent it back down or not and presumably if you get to the end you know maybe day you know in a parties or intractable to call up the judge and you know the neighbors of it so just before we get into the finer points of privilege and all that was there no other way to segregate these documents in such a issue is a legal air that the court made a legal layer so that when it's began this it said that any communication with an attorney is automatically covered by the privilege that is the focus of you know i understand a judge said there judge you say a whole lot of stuff you know you know that i mean appeal is from the judgment not from the reason studies say lots of stuff and we could never in opinion judge got stuff in there did not exactly right but we don't in that case say we affirm for the reason track or we write an opinion and so the mere fact simming what you say is correct at that broad statement is an overstatement and not crickets islami should be really be topsy turvy over us saying now now say that anything out of the noise out i mean that said my point is that if the issues dividing the two of us you know more similar did the judge say something that well he didn't totally correct or somewhere you really here to get us this is to her mind the court this is a subpoena enforcement proceeding this is not a case on the underlying merits this is not about a lot of discovery on the only evidence before the court is the only evidence proof privilege is this privilege log burden of proving that each communication was made in confidence to a lawyer for the purpose of ish for the purpose of seeking legal services there's nothing in that log at all of it speaks to  law and what makes in addition to nothing on the surface if you look for it if there's other confidentiality issues potentially lingering for example the e mails of that are listed here all these e mails there are varying lengths some were one or two pages but some are up to eleven pages you can't discern here whether or not that e mail that's eleven pages is part of the string of e mails and if so who's the recipient and author of those e mails what's the content of those e mails whether or not some of those e mails are confidential some aren't and then whether or not that confidentiality was breached by the sharing of this information which there's a list here of a lot of attorneys again this is all we have  c did not know who a lot of these attorneys are going back and forth we found out that they were a lot of these attorneys were part of the outside counsel's firm but we don't know whether or not what their relationship is with p d l one whether or not they're confidentiality so just the confidentiality issue and enough itself and the court never spoke to it the court did not consider that again it's the application of the wrong legal standard obviously courts and sometimes of the wrong thing but when they applied long wrong legal standard then it's properly before this court that it's quite we're not asking the court to kind of go through all of these two hundred twenty eight communications we're asking the court to remain for the district court to do it under the proper legal standard oh if i understand it this manner bake whose case which is good sets out the rules of engagement you might say has once a prime a fish a showing of a privilege has been made an opposing party can justify in camera and specs and of the documents by advancing a factual basis efficient to support a reasonable good faith belief that in cameron spec sion may reveal avonex that information in the stuff is not privilege so the burden is on the e e o c to advance a factual basis sufficient to support a belief that in camera and spec sion will provide information so that the reader can go oh well of course that's legal advice that would be protected but it's but that's not so whether it's eagle sea or the court there's no way looking at this privilege what they do you can make an independent determination fate it's just conclusory what's also troubling in this case is that we're dealing with human resource claims that so it's legal advice perhaps attached to a human resource claim like that but one individual or another well done every human resource claim is automatically and helps a lated in attorney client privilege human resource activity is part of a common practice in corporate and the corporate world there's a difference between in h r the h r world you investigate you get get i gather information you gauge in a lot of activities like that that's separate and distinct from giving legal advice based on the information that's been gathered and that would be protected and you can tell looking at the face of this whether we're talking about legal advice based on the information that was gathered or the gathering of information that's particularly true given the video's statement on page three that the general h all of a chart activities having to do with claims against management were removed from the office of human resources and put into the office of general counsel so by just saying that they're saying that all of the all of the activities of the human resources both business and legal were put into the office of general the office of general counsel so when we're looking at all of these communications between the office of general counsel and someone else and they're saying that it's about a claim and it's a it's legal advice we it's you can't make that determination based on that not and based on bowers declaration in which she stated that she was a participant in a lot of these she's the charging party and she was a h r director and a participant in a lot of these communications and she testified in her declaration that most of what the those in the contents of those emails were about business advice and not legal advice so we are simply asking the court to remained to the district court for the district court to apply the proper legal standard we're not saying that there is no it's impossible for any of these communications to not be privileged we're just saying the deal meet your burd and then we'll go from there and the same problem here and in the end are you asking us to specifically direct and in camera view in order to ascertain that your hon and let the court use its discretion and in unearthing what exactly is going on in these communications and the same legal error in for infected the protective over order and i just court's determination that power shared privileged information with the e e o c because its idea of what was purple edged is based on the incorrect legal analysis and there and also this court has held confidential information can be used by a managerial person when they're in pursuing of the vindication of their personal rights there's been a couple of cases u as a corporation in which a lawyer that was in house lawyer was suing his corporate client and the court held that you could that individual could use both confidential and and not confidential information to vindicate their personal claims and that was maybe three decision but again in about two thousand and seven if i'm remember correctly the court restated that in the a wh will a case the same principle in house counsel can use both confidential and non confidential information to indicate their claims  bestially appreciate when we have the original actors here to give us the only ground first hand information about what happened thank you and i think it would be helpful because i do think it's important to start with the procedural history which is in the record so everything i'm about to tell you even though it reflects some of my conversations with miss wilhite were described in the briefing so i'm not going to go be on the record i understand that would be inappropriate if you look to the original application to enforce the subpoena as you pointed out your honor there were a number of issues that were raised by the e e o c alleging that we were not in compliance and the minute that file the have to tell you i was surprised and so i called the trial counsel miss will h nice said you know whatever has happened between the parties we should talk and if you look at our application our response to the application i actually begin my brief with chief justice roberts forward to the amendment to the rules  civil procedure about the importance of being focused in discovery and also lawyers talking and collaborating and if you look to the record on appeal pages forty five through forty six you will see in your response to the application to show cause we then highlight for the court magistrate johnson what the product of those conversations were in one of them was that we had negotiated three series of three calls this privileged l will heighten i agree that the log now comported with what they needed to evaluate our claims of privilege and we originally had a call scheduled then to go through what if any concerns they had about the individual entreats and my apologies i don't have the page in front of me but there was an e mail attached in the record where ms willhite had advised me that the e e o c had made a determination that they believed that we were using privilege as a sword and that we would not have such conversation instead they preferred to seek relief from the court asking in camera review of all two hundred seventy eight entries and if you look to their reply brief at record of appeal pages ninety four through ninety five that's page five and six of their reply brief in the underlying proceedings they acknowledge that i have accurately represented the concessions that have been made in the negotiation of the law but they are expressing for concerns in support of their request that the magistrate review all two hundred seventy eight in camera all two hundred seventy eight entries in camera first that the communications some of them included communications between nine lawyers second to miss bower the charging party and the underlying ego see proceedings was either a sender or recipient third or that they believed that it was or burden to go through each and every communication and their theory was that your honor for example if you had called me and said we have an employee who is saying that she is being sexually harassed here is what she has alleged and i as the lawyer say here is my recommendation we need to investigate to take advantage of our affirmative defense under the supreme court rules we ought to conduct some of this under privileged we ought to conduct some of this without privilege here are the questions you should ask the ears theory was that the underlying communication from the human resource person who taught me was not was a fact that was not privilege and only the actual legal advice that went back was privilege and i explained to ms willhite that did not comport with the supreme court's decision an up john that both parts of the communication were privileged that i had in fact exhausted my ethical responsibility to ensure that all of the communications on the log were privileged in my view but i remained willing to go line item by line item and respond to any particular concerns and then finally we learned through the brief to reply brief and in court that they had been speaking to witnesses skirmish so to speak at least or not with discussions etc but what about the log itself i mean part of the contention mase the log is the log but basically it just says e mail to deputy general counsel seeking mean they're descriptive i guess maybe as well put it so is a position that you satisfy the burden not you personally but b o c satisfies its burden by just  g that something is but without more yes so it is my burden and i believe this lot in these descriptions satisfy that and i think we need to begin with and michael for me my brief should have started here  rule twenty six five two the federal rules of civil procedure clearly enunciated what my burden is when a party claims privilege then you'd only quote describe the nature of the documents communications are tangible thing in a manner that without revealing information itself privileged or protected will enable other parties to assess the claim and so if you look at the it entry that you talk about e mail to deputy general counsel seeking legal advice re pearl by perl investigation re billing dispute this entry and in fact miss wilhite agreed that these entries were sufficient for her to please understand the nature of my claim which comports with rule twenty six five two because remember been discussed exhaustively in twenty seven single page spaced pages of position statement so the investigator understood perfectly that this was a dispute between two gentleman about who should get credit for a client and he had filed a complaint saying that he was denied the credit impermissibly the same with some of the others for example lisa morrow or entry number five e mail to deputy general counsel seeking legal advice l discrimination claim our position statement outlines before they got this privilege log exhaustively exactly what miss mauer's claim was that she believed she had been brought in to a pay grade that was less than a male peer even though she had the same educational background and she wanted the same amount of pay we had revealed what she had alleged we had revealed the remedial measures that were taken we disclosed all of the email doesn't i don't think that satisfies your burn that would not satisfy my burden but that's not what actually occurred and that was a finding of fact by the magistrate we said no the thirty six entries that were exchanged between non lawyers if you look at basis of attorney client privilege as we say the reason we have invoked privilege over these communications is because the sender is sharing with the recipient the advice they received from counsel in order for them to implement that  the case law does say that you can have communications between non boyer's where you're sharing the advice so if justice king was the person who had to implement the advice and i were not a lawyer that it shared justice dennis's advice and i communicated that that would be privilege and again i think the important part here is although mr has said we just think the log is sufficient that was not what was raised in the court below what was raised in the court below was i don't trust them here are illustrative examples where no privilege probably applies and therefore we want you to review your honor of all two hundred seventy eight  like the where you're you're saying that privilege but you don't really show how the e e o c can base sure of that or satisfied that that is private but your honor that's not and i don't think that you know i'm not sure that the district judge acted properly in just one line saying oh no or a lower fact he did he didn't look at any of these things either well again i think that you have often i had offered miss wilhite that opportunity i never said no to your point chief justice we got in this boat because the e e o c has always steadfastly maintained that they want in camera review all two hundred seventy eight entries and they don't want to do the work to have the conversation i have it with myself or to point to the judge the entries that trouble them instead what they want is to burden the court with all two hundred seventy eight documents being reviewed in camera based on an argument that was not raised in the court below again this was negotiated and so the concerns about i can't figure out what you're saying that was not raised to me or to m e johnson those are being raised for the first time on appeal by somebody who didn't participate in those negotiated calls and who again i would point the court back to the record on appeal pages forty five and forty six in ninety four ninety five which summarize the concessions that had been made and the arguments that were teed up to the magistrate and if you look back to the hearing notes and i appreciate your honor that the supreme court has said and i'm glad you raised  that your job is to review judgments not reasoning the judge however i think when they say she said everything that comes out of the lawyers mouth is privilege that is not an appropriate characterization of what she said i recall there are two issues pending in this appeal one was the log sufficient such that they needed to make individualized review and two during oral argument and in prior communications with us it became apparent that what did the lawyers tell you because they would determine for themselves whether it was privileged that that statement came out and i agree that if magistrate judge and had to do over again she probably wouldn't have framed it quite that way but it's an exasperated and in that moment as she is feeling what is clearly an inappropriate comment she asks point blank miss wilhite did you ask former media executives what did the lawyer say in this will light doesn't answer directly she says we didn't seek privileged communications and isn't that tulloch way that magistrate johnson clearly is frustrated by the government's position that they can illicit ex parte communications and then self evaluate whether those communications are privilege and that is the second part of her order that is up for review here and we believe that order also subject to a clearly  standard should be upheld because what was described in the proceedings will oh should concern this court we have a situation where lawyers for the government are saying we an ex part never be a question what did the lawyer say if the e e o c believes that some of those communications were not privileged the appropriate thing to do is to contact me and say we'd like to interview witnesses and we want to know what did mr grimmer advise or what did mr poole ozer what did my partner terence smith advised this witness of and i have an opportunity then to object and then we go off to an oracle three judge not a member of the executive branch to make a determination about whether that communication is privilege and the order that magistrate johnson issued was appropriate because until we know what they've elicited we don't know what the remedial measures should be we have to have a charts and what have you already breached or what has already been revealed to you and history judges order was very clear magistrate johnson said i don't want to know everything that's been told i don't want to see all of the notes i want a very limited disclosure you need to tell b t o what witnesses have already told you  regarding to munich ations they had with media's legal counsel and that is appropriate the case of that we've said in our brief makes clear that it is an ethical prohibition to illicit privileged communications and when that has happened sometimes something as far as disqualification may be the remedy perhaps there are other lesser remedies but we cannot get to what the remedy should be until we understand the breath and the scope of the violation was it a no harm no foul because it was one communication that was really fairly benign were there forty eight communications and one is very troubling in this case is if you look at the charging parties underlying allegation she's saying i didn't get a job and by the way this company discriminates against all women and people of color in their organization and i would like to tell you all of my stories as the former chief human resource officer including all of the bad advice i got from the lawyers when i hope them i think the lawyers are getting it wrong well that's precisely what should not occur and i think that the k b r decision from the d c circuit in two thousand and fourteen speaks to this very clearly in that decision it's brown in our briefs they go by k b r but kellogg brown the court recognize that one of the fundamental reasons why a business would call its lawyers even in a human resource setting is because you want to know when someone calls and says i think my manager is discriminating against me the organization is looking to do two things one understand what its legal obligations are in regard to that employee and the employee who's been accused of wrongdoing and to mitigate its legal risk so yes when we have allegations that a partner in the organization has been accused of doing something bad we have a legal risk by way of the partnership agreement are we going to terminate this partner we have a legal risk by way of the employee who's made the complaint if we learn during the course of the art investigation perhaps there's no wrongdoing we may get a claim from the employee anyway that's good i have heard nothing back in the e e o c on this law their investigation i assume is ongoing we're not privy to what's happening at the administrative level ms bauer also has claims under section one thousand and eighty one and she  private lawyer have brought those claims in federal court in houston they have not waited for their notice of right to sue so is it a view that it's the log plus in other words this is the the the law presumes a familiarity with the tastes and the reader it i have no doubt that the three of you reading these would say i don't understand but the person who is handling this case knows precisely what these referred to because there were two very all right so for the sake of asking you know we'll do what we do but we always like it when people resolve these matters without us having to write exponentially on rule twenty this matter could be resolved you know in terms of the sit down on these matters or at least reduced down so poor or say impractical at this point i would never tell the  c i refused to speak about this law and this is an ongoing investigation and i think magistrate johnson was clear if you end up back in my courtroom because you decide to bring suit she's on the record if it becomes clear and up positions or other discovery that perhaps some of these are privileged you receive people in such intractable positions you know that's kind of a waste of time but they're in this building and you know the media's office is good and all that i just sort of throw it out and i asked my stars same question of whether or not it would be beneficial at least you know to start with to see if any discussions may move it down maybe we don't ever have to but you know after some period of time it's not we do what we do know we would never be asking a mediator what a job talk about it all at stuff what we do is based on what's in the briefing and what you know what we hear but it is at least strike says something that given what you said that have been negotiation that have been discussion maybe dish misunderstandings as to what why these items are privileged that is not in the privileged that your your but basing your argument on primarily today now how do we know and do you tell us somewhere in your brief or somewhere where that extra information is with regard to each item because looking at the largest cell phone i don't i don't blame me or say person saying i'm this doesn't tell us proof i want to be clear i don't want to mislead you your honor there's no other source that says here's why it's privileged what we have is what i understand to be perhaps the confusion is when i say the least a more complaint you may not have the background of what that means so in the position statements when you get a charge of discrimination from the e e o c you write a letter brief saying here's my theory of why  discriminated against here's what really happened and we lay out our entire position and that has exhaustive detail about what miss marr's complaint is i would say if you wonder stood that she was complaining about discrimination and you understood all of the facts then to say and mr bauer then reached out to get legal advice about this claim that that entry should be sufficient because rule twenty six is clear you can't force me to actually disclose the advice then plus there's no other evidence in the record but the law does representations by counsel representations by counsel is not evidence all we have in the evidence is this law so that was quite confusing to me and what this law says is seeking legal advice well one thing i want mention about the law the log repeats itself over and over and over again there's hundreds of communications involved here that many of like forty of them have the same descriptor now that's not conclusive but enough itself that doesn't suggest precise information  exposing or revealing really what's going on in that communication there's no document here that's been redacted it's just it's almost like a document d it's like here is all these documents we're going to slap on a label of seeking legal advice and that's enough that's all we have to do now e s c you do it you go through it and you prove it that is not the that's not the law the law is they have the burden of a stablish in each of the elements can we put in evidence absolutely but that it's not our burden and there's been this shift of burdens that this burden shifting kind of paradigm is not the law of privilege and i did want to point out that well the statement of of legal advice white of the opposing counsel made this point i think in in the briefs and also before the court here that it would if we said any more we would be revealing confidential information well there was a similar case and it's not in my briefs but i can certainly supply for the court of in one case in which it's called scott versus chipotle mexican grill southern district of new york two thousand and fifteen and the court in that case public toilets are going back and forth and this was about the eighth or ninth version i believe in this case and it said legal advice concerning the company's apprenticeship program and the course said no that's not enough and then the company came back and said that this was enough wh just responding to what was being said your honor that is that it would necessarily mean that you were dealing confidential information and i'm just showing an example of where you can say more than legal advice and a dozen other and would reveal confidential information a discussion of legal advice among corporate employees responsible for receipt and implementation of advice so that would be something that has a little more meat to what it's about employees and using the legal advice in a particular way so that it's the point is they need to do more that opposing counsel was saying look he has seen the house all this information we know all this information that's been discussed so what's the objective what about putting it in the law why not make the blog a little more beefy if if you don't have a problem with us knowing then around  itself i'm not saying that's dispositive of the argument you're making but at least it's helpful to figure out this was working along the lines of trying to figure this out work it out get to a point where at least there were w a request to them and i know the burdens on them to say ok if you say what it is give us the document redacted for example to take your point so that any of that i mean as a remedy to somebody say ok if you say this rule twenty six we all still want to be down there trying to battle the deal out but that's that's that's what i'm at i got your point right now to the point i raised opposing counsel ok your when i ask her about seeing the if we do it immediately after this hearing sure times your flight it's up two o'clock oh you're in business now is right around this corner and already put the question to me so he knows you may be coming but don't read me wrong it's not like a judicial or if you don't go you know we're going to rule against is just something in cases we do it's jank as wall between us we now asked him what is causing it just strikes without giving up your legal positions taken client you here to make law for infinity or you to resolve this case with respect to your client you know i got all that but if the bottom line is moving this litigation with this claim you know you don't know what you may get from us you could lose what you say but you backed down but if somewhere buried within this is resolved in the litigation route twenty six is what it is this is just a question for the bench if that's any place in the capitals is that desirable to try to work through it  armageddon and you want to go sign on it's not about it being armageddon but my client is more than just this case my client is about a step the law and the president and making sure that in cases that are to follow have proper instruction from this court as to what the proper burdens are and the the legal standards so i mean i i do represent the government so it is it's a little bit of a different position a council with private with a private client at different we get the u s attorney and he our time we get the government and the only other cases and we say the same thing they're saying i got your point i will be argumentative about it i think you got mine