good morning your honour's market us for the federal trade commission may please the court i will start with the attorney client privilege issue that the f t c race in its appeal the district court committed an error of the law when it found not legal business roles at the company as this court recognized in the first paragraph decision in these proceedings the district court should have required to make clear showing that percy sought the document to provide legal advice but it did not instead the court assumed based upon the overtones of the documents and percy's title as employer that it was sufficient for berenger to make a showing of of were requested or created for the purpose of legal advice second percy testified repeatedly that bear assigned her responsibility to negotiate the business terms in the economic terms of these business deals third person repeatedly testified that the analyses supplied to her by business people were for the purpose of assessing whether or not these agreements made sense from a business and financial perspective and finally the district course pacifically found that none of the documents indicated that they were used for the purpose of discussing antitrust liability with respect to the privi number six one seven which is found it join appendix page three three one their parent or claims that the document is attorney client privilege but there is no description of the document as being created for the purpose of legal advice by contrast document number fifteen forty two there dr berger claims the privilege as well but specifies that the document was created for the purpose of legal advice and there are how do we draw wind just a broader question how do we draw the line between coroner second and third points really all second third fourth points  instructive teaching from a number of cases that have looked at the question of whether or not a company claiming the privilege has made the clear showing so for example in the this course decision in sealed eighty four the court examined the responsibilities of in house counsel and similarly in that case the court examine the contents of the communication to determine whether or not it involved a legal issue in another case cited in the briefs the second circuit decision in rate county of eerie the court examined whether or not the document was generally did with a lawyer acting in a capacity as a lawyer and i guess i understand all that and just in applying those general principles to something like this where you're suss thing all the ramifications of a potential  bit how we do that in any principled way i don't think you meant in two ways how do we decide in a principled way but for all of you in the bar how do we provide a rule that gives you guidance going forward about what you what is going to be privileged and what isn't because that's one of the big things we have to think about in a case like this i think it was setting forth clear enough lines for for the barghoorn for e t s your honor and that kind of guidance i think will be important is similar to the guidance that this court provided in the first barrier decision with respect to the distinction between opinion work product in fact work product so there are a number of facets to the answer one is the th was just discussing where you see course not relying upon ex parte affidavits but actually looking at the documents looking at the stack surrounding the creation of the document the law does draw a distinction between documents relied upon a lawyer to understand the business ramifications that were created probably not for the purpose of providing legal advice but that the lawyer was interested in some business documents to inform her legal opinion and  those documents are not protected by the privilege under the supreme court's fisher decision clearly created documents documents that were created for the purpose of advising the lawyer right correct your honor so that's a distinction i thank you and the lawyer says to people in the company i'm trying to advise the board i'm trying to advise the c e o i'm trying to advise whoever on whether this makes sense to set a legal way i need to know some financial information and that information sent provided that approval or not the lawyer of the company claiming the privilege needs to demonstrate that each of the documents which explains the privilege were covered by this is components of the company if in fact it is covered by an actual request for legal advice then yes that diving is going to actual request i think the key word in what you just said might be for legal advice that is correct and so you need to look at this realizing the c e o on on the pros and cons of the settlement legal advice and we're not seeking documents that are advising the o i know understand that's what is advise doing the c e o on the pros and cons of settlement by the general counsel is that legal advice if the general counsel is advise in her capacity as a settlement is a good idea given the potential legal exposure that we have is that is that acting in the legal capacity or not if the yes yes if the lawyer acting in a legal capacity to advise on the legal ramifications or the legal advise ability of entering into that settlement yes that continues to be protected how about advise use the overall advisability the settlement taking into account the potential legal exposure still acting in a legal capacity here on a bad example sounds like the k b r case where you have a dual purpose document in which case the the privilege would apply the issue here though is there hasn't been the generated as a result of lucretia your honor yes and that was the earlier decision in this case where it was concluded that the documents were a work product but there's a separate inquiry in terms of whether or not the documents are protected by the privilege  their parent or despite opportunities to assert that they were created for the purpose of legal advice for example in their privilege log or at that time when we were going back and forth with parents are very happy information that they had the you know what do you think they would take for settlement can we afford that so there'll be if and and i got those questions is outside counsel and i think if outside counsel assisting those questions   matters here aren't because of the reasoning put forth in the sealed case decision which is a recognition that in house counsel wears multiple hats and we have here mr percy's own testimony that at times first time it was to negotiate the business terms of these financial deals were done used to settle the negation there are other documents no doubt and we're not seeking those where she is providing the kind of vice in terms of whether or not this is viable from an antitrust perspective but there are clearly documents where are you contesting that the character of any of these requests the documents as communications and the focus is really been in capacity as a lawyer or not but the privilege focuses on only only protects unlike the work product privilege only protects communications between my own client and it just wasn't entirely clear to me looking at the record which communications these were but is that just is that have you just saw those facts directly as facts in discovery because the communication may be protected but the underlying information is not is that is that something that just wouldn't documents along those lines the problem is that we don't have any contemporaneous analyses of these issues at the time that the negotiations were ongoing and the contemporary analysis gives us information about the economic benefits and burdens of of these agreements that's what i'm asking can you ask them what you know thirty six deposition and ask the person that they produce you know what information you know did the company have about the effect on its bottom line of a generic entering a market you know is that an analysis that you have can you answer those questions or is that something that you can't get because of work product or attorney client if you just go for the information quote information rather than who said what to whom and why historically was produced in response to this person so you know no we have asked for that information  on the attorneys efforts your honor two reasons number one we don't have the inputs that would have been used to make those analyses at the time that a parent who was considering these business revenues from sales it originated in our country versus if there is not generic country what are the costs for example of doing one part of these agreements is a co promotion agreement and that co promotion agreement involved losing money on that and using that as a means to basically funnel money to bar in exchange for barr not entering the market examine early and i think we understand that the business sort of lay out in the question is if you ask those questions at a time x you know what what was your assessment of how much it would cost barrier to do that and how does that line up with what you are willing to pay bar to do that you know i understand that those are the toughest makes those issues relevant and i guess i'm still trying to get at could you ask those questions directly at time x your assessment of you know the hit that you would take if generic entered the market what the value to you is of this co promotion agreement or those things that you can just ask directly of somebody in the company rather than saying produce for us historical documents that somebody created for a person like they just have that information and can you just get it your honor we asked for that information directly from behringer and they refused to produce it on the grounds of privilege and work product so  we don't have anything that is contemporary contemporaneous with the entering into these agreements we have documents and analyses from earlier time periods but they're not informative to us in terms of what we w was the what were the business justifications what were the costs impact sort of the profit impacts associated with these particular remans they're refusing to produce those to us on attorney client privilege grounds as well as work product lines in terms of the work product under our prior decision are there things that if they were no attorney client bar you could get you think under the in other words is the work product analysis but barrier been been removed for some for a handful of documents yes i believe they're about ten documents that we've received since the remain in the prior decision and they're about what we expected in terms of the  nature of the documents their their numbers their financial analyses looking at profits looking at bosses looking at revenues associated with different generic country dates but those are documents were there and our claim to only work product  prior decision and the decision of the district court on remand we now have those but it's just like i said just a handful of documents there are many others where barrier has also asserted attorney client privilege and we do not believe that they have actually made showing that what we as the recipient of the document or the hope or recipient of the document that's all we have to go off of initially and then we have to kill you just to follow up on my earlier question can you point me to in the record and it may not be in the appendix been the district court record where i would find it the discovery requests that you made that would have that you think should have produced the information that you're still trying to get and is there anywhere that i should look to for how those are framed someone that makes a difference in terms of whether you're running into or getting around it so your honor i will double check between the time that i'm when i'm sitting down before my  but it is so i can give you the precise turn appendix numbers but i'm quite sure that we attach are you there are see idea are subpoena that requested this information and so i can give you the exact pages where you would find that they d assert attorney client privilege over those they did maintain that they revealed and they do are maintaining on appeal here that they do reveal her opinion but the court found that in terms of the kind of not be required to make you consistency yes i understand your honor and we've not actually examine each document to see if there were any that don't work but let us assume for these purposes that yes they were all questions the very issue of whether that they were paying a reasonable amount or over a pang to settle bears on whether this was the real reason or not and so it's just extremely hard as a practical matter to sort those things out and there may be financial and business components of legal advice and so i guess we're really asking you at a more concrete level how you would have us distinguish those we understand at the general level and we we are on board with our precedent that says that high level executives who have to be course we are that high level executives wear different hats but the you know the rubber hits the road at the more on a more concrete level so any concrete guidance on that from either side is is helpful let me just ask you is the question whether behringer has met its burden here a factual question a legal question the question of whether or not the barrier has met its burden i believe would be a factual question but you have to make that determination based upon the right frame of analysis and that's we where we think the district court committed the legal error and that the district court looks at two principal factors the fact that mr percy was in or tourney and the fact that it was under this umbrella of litigation settlement and that's very similar to the error that this court found in the first pair of her decision where it said that the mere fact of general counsel's requesting the documents in the context of litigation wasn't enough to show that these documents were opinion work product one that's true for sure and that's a different issue opinion doesn't have to be opinion to be attorney client privilege that's right  honor but just in terms of the the the type of error that was named we believe it's similar in terms of both not sure i'm seeing that because the tourney can ask for factual information to help the attorney provide legal advice and that will be covered of course by the attorney client privilege i don't see how our first opinion in this case bears on that question well the first opinion bears on this question in this way in terms of based upon the teaching of other cases that have addressed whether or not attorneys or companies claiming the privilege have made the clear showing they look at the content of the documents and what we the f t c known the public knows about the content of those documents as described in the behringer one decision and the content of those documents are financial analysis now i understand the point that if that financial analysis had been requested in order to provide the legal advice it would at least have a context of our as you said under the umbrella of litigation settlement you've conceded that they were communications between her and the client and you say given those factors don't suffice what more would be required in your view should be required is required to make to meet the burden while at a minimum of the privilege log should indicate that the purpose of the document was legal advice he talking about what her assignment was from the company and her assignment was to be the lead business negotiator that suggests that at the time she was requesting only some of these documents she was asking them for the purpose of analyzing the finances the financial aspects of this deal not the legal aspects of this deal and she was given the opportunity to clearly say whether or not the purpose of these analyses were business or  j seven seven six sure if you go back to eighty five ninety she asked other senior executives non lawyers paul fontayne and marty carroll to give her the information parameters that she needed to negotiate with terms of the settlement so that's a five ninety and she was then asked what was the purpose of getting these figures and she responded quote for harassment ers within within which i would be able to negotiate the deal  ting terms in terms of the validity of the patent raising legal issues yes but if you're then using a business deal in order to create some money to settle the case  the merits of that business deal we believe it's business and not legal here with respect to however if if you're looking at the merits of that you have to run them through an antitrust analysis to determine at the time it was created did ms percy request it in order to determine whether or not these were this was within the acceptable financial planners it's a separate matter in terms of whether or not these financial planners raised the  possibility of legal liability for barrett or and no doubt there were times when this person he would have been advising the company on those matters were not seeking those documents the in terms of what testified to he made clear that some of these the purpose of these financial deals or some of these financial analysis were business that j seven fifty three for example she was asked whether or not these deals made sense from a financial revenue standpoint whether that was business or legal advice and she said whether they make sense from a financial business perspective is this is this a bit later at a seven seven eight she was asked about another very pleased the court the analyses on the attorney client privilege issue that are critical are the factors that the magistrate judge found as a matter of fact and not lee made this an endeavor where the general counsel was getting these documents for the purpose of providing legal advice and there are several critical factors here that the magistra judge found first of all in response to several of the questions every one of the documents at issue in this case was already determined to have been created because of litigation in the first bar in her case there's no document at issue that was not created because of litigation secondly the specific context here is important because the settlement agreements that were reached in this case everyone knew were going to be turned over to the f t c for the purposes of analyzing any trust compliance so this is a situation where it's litigation settlement and the settlement agreements are being turned over to the f t c third all of these documents there are factual findings by the magistrate judge below were either created by mr perske or she directed their creation and the magistrate judge said for the purpose at least in part of providing legal advice there may have been some business aspects but part of it was to create legal advice and for it this was all done based on consultation with outside counsel who suggested that this was critical analysis to be done for the purposes of any trust compliance that's all in the record in these circumstances we believe there can be little question that this was done for the purpose of soliciting and providing legal advice and the magistrate judges conclusions to that effect are are fully supported by the and for some of the documents were only work product was asserted at the time the privilege was asserted there was not enough evidence to say for sure whether the document had been created for the purpose of solicit receiving legal advice and so forth of the relatively small group of documents where there wasn't enough evidence of the time only an attorney work product designation was made not attorney why it just had to do with the evidence available the time in the s between those documents and the other and the attorney client privilege documents so you can identify at this point but part of the distinction is that originally in the record there was a much better evidence from the general counsel herself and other lawyers that specific documents have been raided for the purpose of soliciting or receiving legal advice and for others there just was not the same level of evidence for a few of those documents is possible that perhaps a privilege could have been claimed by it based on the record first during her opinion that those were all created because of litigation so what's your response to it and maybe you just answered this but they haven't all been specified in th but something that gives us a little bit of a sense of concreteness to that and do we have that information i do not see that for every doctor or for not for every document no but for many of the documents yes and i think part of this was that this was a massive production and then when i agreed to submit i think was eighty eight documents to magistrate judge factual and for those eighty eight we provided individualized document by document support for the privilege designations and that was in the form at object and so there was individual i was document by document showing this for all of that we asked at the time do we need to go back and amend our privilege logs and what of the additional information in the agreement we made with the f t c was no that we did not need to go back at that point what was the financial posture for beringer of you know getting co promote what was this you know scope of their access that you expected to be able to take advantage of if you agreed with what was that  worth to you how do you know when to what were you thinking at the time what was the bite that might be taken out of your market if they entered it at x time that's information that is not covered by the printer tray it may not about what they thought the financials of this deal the tail so so there's no real issue of them being prevented from getting basic information about this that's necessary to evaluate the financials of the deal broader question you in your amicus say that if the privilege is not recognized in this these circumstances that's really going to destroy the privilege charm in house counsel similarly a lot of negatives come from that on the other hand  c says recognizing the privilege here really opens the door to abuse of the privilege and improper protection of documents that are really business documents that have been shielded with the privilege label how do we from your perspective prevent the abuse or war where how can we write this so as to draw a line that prevents abuse and respond to that concern i think this court's precedents give the give a lot of guidance there because we're going to report documents that were already created better business documents simply because they were provided with wired don't become privilege that's i think black letter law and that's really the distinction at least in this case none eric the lawyer could armed with a ruling in your favor in this case start becoming the requester of financial documents beyond this situation we have in this case settlement of litigation we are as judge rendell pointed out the legalities depend on the business realities because fair market value for example is a critical determinant for legality maybe and let me just ask this basically the type of settlements and ever being able to prove that they're anticompetitive but these are not going to be documents that are kept in the ordinary course these are always going to be evaluations that are done in the context where the claim has been made by the generic that the patent your patent doesn't cover and you turn around and make a contrary claim and then the deal comes up so it's a business that is of of it's nature on a on a law foundation on a litigation restaurant ation so there's not going to be ordinary course documents so then the question becomes given that the supreme court thinks i'm going to have is that there's that the proof of anticompetitive behavior is highly dependent on the financial realities the question then becomes how does the f t c have access to those financial realities and i take it your answer is it is my answer and i'm asking you whether you accept it they can ask all those questions and get all that information as long as they don't ask it in the form of what documents did your lawyer request and get if they can say at this time when you were considering whether to file the financial terms and big can decide based on and wall you're right that that certain of the information such as a co promote gone only in the context of litigation might not be available in the ordinary course or specifics of how the co promote affects it but they have a lot of other information and yes you're right they can they ask most of that particularly if it's not a lawyer vs the business people when you were looking at this from a business perspective what were business people who were involved in the deal of volved in negotiating involved in putting together some of this information and they were able i asked them all about the business aspects of the deal and they got answers and they are answers you want to talk a little bit about work product sure  so obviously the attorney client is is the primary focus of the case and it affects the majority of the documents on work product we believe that while the magistrate judge really did a thorough job in looking at everything that he made to legal errors one of those legal errors was not considering the x party or shrooms of ms percy he's supplemental declaration and that is important i know you have that in the in camera perske directed the creation of most of these documents but didn't personally create them on her and herself and i don't think that's the real legal significance the question is are her mental impressions contained of the documents and when you look at the way she explains the mental impressions in that in camera portion she goes element by element and says look this document had five factors and there were columns horace spawning the five factors i chose those five factors because i thought they were the factors that were relevant to any trust analysis and legal compliance and so giving the f t c those documents shows the factors that she thought were important and we believe that even under the burner one standard that shows a sharply focused that's certain right well under that analysis and i do want to just say well this court can't revisit it a substantial need analysis in the first during your decision we believe is really sort of off the rails because it says a substantial need is in your relevance certainly it could do so but our point is that we think that these two you know legal errors sort of lead to the magistrate judge not getting to the right answer on the one work product as as i said just before you sit down back on the yes i mean the answer is yes and there is overwhelming evidence here this isn't a situation like in some cases where somebody just says it's a privilege with no explanation i mean we have detailed explanations and certainly with the sample documents for each and reports and look at the entries in the problem it doesn't seem obvious to me how to assess the assertion that that is provided in seeking difference particularly have you nischelle privilege last every e mail i get from my lawyer friend says attorney client privilege i and they're typically not giving me legal advice they're just saying when are we going to have lunch and so the fact that something's labeled that way i mean i think you have to appreciate the position where and where we're supposed to be making an independent analysis of this and if you say well are labeling are saying that something as attorney client it can't be enough well i think in a different context maybe it wouldn't be but here were again you know we agreed to a sampling procedure we agreed to have more robust discussion of those eighty eight sample documents we did have that discussion there was no objection in the district  the time and then we really didn't have to go back and rejigger all the privilege logs in light of the additional discussion that i think in this case that that certainly suffices i you know i am i saying in every case just saying attorney client privilege suffices but we're talking about i think the practicalities of litigation you're talking about you know ten thousand or more documents being produced you're talking about if it was over two thousand documents the but with all of them a basis of privilege and then six hundred being challenge as you narrow the scope of the dispute and litigation additional explanation can be provided i'm not aware of any case that has said that a party leaves an attorney client privilege designation by not making a more robust showing t thank you thank you this kind of information and we did not receive any of this information contemporaneous with the negotiation of these deals with respect to asking for that information from baron for business people we did ask for that information durin investigation hearings in the business people refused to provide us with that information on the grounds of privilege with respect to the drawing of privilege yes your honor or or work product i don't recall i wasn't involved in those i try to stephanie so i stand here today i couldn't tell you precisely what the question was of these and this is just a pillage question too i think the point of these privileges is in essence not to a well the adversary to piggyback on the lawyers for the other side but you can directly ask the underlying witnesses what happened what was the financial picture depending on the nature of the case and i guess i'm not sure why that couldn't have been done here but my understanding of what the lawyers involved in the proceedings have told me is that they asked for that kind of information and the witnesses refused to provide it to them so the are a couple ways of asking i guess one is to ask for existing documents and it may be that existing documents were only you know given the nature of these claims and how these business deals come about in response especially essentially to an antitrust dispute or risk of an antitrust dispute have you also asked in a form that isn't dependent on existing documents like i thirty six deposition or other form where you're saying bring us the informed person so that we can ask these questions it may require you bearing or to to reconstruct or to generate something for this purpose we have a practice that you probably know it is a practice that we subpoenas and as well as we took investigational hearings on these issues but this points to in terms of questions of drawing a line drawing and providing guidance we think one bright line might be that if a company decides to point the general ask the general counsel to negotiate a business deal then the company needs to be careful about whether or not the negotiations are involving business issues or legal issues and in this court hinted at that in the first baron he to cloak business documents within the privilege and improperly just a few more points wrong with respect to the co promotion treatment we have nothing contemporaneous and that information is really very important to guess we have a greater point but the case law recognizes that there are different roles played by in house and outside counsel although the they've often western case was a case where actually outside counsel was found to be playing business roles so that's why i'm hesitant to say it can never happen but with on this issue of the descriptions in the privilege of law the federal rules require companies and parties asserting the privilege to provide a identifier you your honor actually it's an appendix to our brief where we have listed the the entries where attorney client privilege was claimed but there's no indication in the description that it was for legal purposes and the last point the