lengthy as this record is the district court made certain findings that the government must receive specifically about those orders the government did not follow the search warrant requirement in terms of doing a scope review some your honor they received actually fifty seven electronic devices ok have you gotten that back the copies were immuno i'm not asking about the copies did you get the computers now that we received the originals about what else has not been returned not everything was return eighty seven you have a law that was produced on what was already turned over to the state this is these are documents that have absolutely nothing to do with the search warrant o b g y n records of mrs brown valentine's day love necessarily suggest callous disregard what can fail to follow for any number of reasons including negligence which doesn't support grammar so find your honor i think that  was not presented properly to the district court by the government that shows that it was not negligence there was an e mail in this or that it's the record one thirty one from mistress island to another f b i agent when he found out that the scope review had not been conducted this was in may of two thousand and twelve he writes down at the extension has expired and we did not apply for another one it is too late does this mean anthony gordon who's a f b i took person never knew had not been reviewed that he knew was in violation of the order and he dumped it on the state authorities you had all right if you would have reserved oh my gosh i made a horrible mistake or we all make mistakes i make them everybody makes them but when we make a mistake we've got to stop and he didn't stop he took everything on his way out of dodge because he was reassigned back to quantico after this whole debacle and he dumped everything on the state authorities without any guidance about scope without any guidance about privilege and now a separate superior court judge has had to go through all the stuff and has found the remains of documents that are beyond the scope that are privileged to twenty client communication that really around ready to pursue their that's the fourth branch of factor and i disagree because the only remedy that the communications related to an ongoing case that is being litigated in state or protected and not in the hands of the state prosecutors prosecute this is i don't know exactly what he was doing when he dumped all the stuff i mean this is an f have from time to time on what the f b i and u s attorney says to us he was not given this information he did not realize what was really going on over there what i fall for the tour for and that a minimum i would ask the panel for is a remained for the evidence or hearing he took the representations and it's reflected in his order he took them at face value notwithstanding the fact that in an earlier federal forty one hearing he had made a finding that there were in accuracies in special isn't whiteman's affidavit but nonetheless harmless been told about is not the case and they have turned them over to the state authorities so we know that they are still in existence we and there's a bunch of documents that are still waiting to turn over pending this court's ruling apparently we don't have an accounting of everything that's been turned over how we found out about this and why we couldn't bring this up at the time was we didn't find out until the stuff started showing up in state discovery we couldn't believe what we were saying and they actually started to turn the stuff over had nothing to do with the state criminal case  copy and you have the original serve every thing as far as we're just told us we do now so why is that a forty one g problem for return of the property you have the property well you ha which included that language to have the evidence destroyed or be turned out of the government's possession we don't want a general search warrant and that's what happened here going back to the original search warrant softer on of this was a search warrant two thousand and eleven based on we have the affidavit now based entirely on a grand jury testimony that took place in may of two thousand and eleven about of then step to place in two thousand and five and two thousand and six this is the most stale search warrant that i have seen in my entire career as a prosecutor judge or defense lawyer this was there was no chance that anything with point was going to be found in the stanger it was executed weeks after five of the seven counts of the indictment against mr byrne had been dismissed by the affidavit and gave it to a magistrate judge who signed off on it there was nothing in here that was tailored to get discoverable evidence in real time the federal investigation went away by may of two thousand and twelve but not before they dumped all this irrelevant and privileged information into the hands of the state under those circumstances rather under rule forty one z we believe that the appropriate remedy as we articulated was for a return and destruction of the evidence the government should not have the wouldn't why wouldn't why wouldn't if we were to agree with your arguments otherwise why wouldn't the result simply to be to say you identify specifically item by item exactly what you claim is privileged and the court will take a look at it in camera and sort the wheat from the chaff that was the original order of the federal court we review the non digital the twenty seven thousand pages we gave them a privilege log apparently that didn't do anything because they just turned some of that evidence over including just as it is one example in a letter in untrue a letter written by john van de velde mr mr brown's partner also before the indictment that was sent to mr burnham and that was turned over to the state he had been misled by the u s attorney's office and by all without calling names and why don't you i mean i'm struggling to find out what would work here and if the state court has our and he made a determination as to which documents are privileged and which ones are not why why doesn't that solve everything well no they've only done that with regard to a small portion of the documents to just that were produced all of it hasn't been produced or i don't think so i don't know they won't tell us what has been produced or not produced we believe or we documents there were the fifty two devices we believe one of those fifty two devices had some kind of review because your bookmarks on that was that was one of mr brown's home computers the other fifty one were not  non digital documents the hard copy documents those grew reviewed by me and that was pursuant to the court's order and then the privilege log was turned over but unfortunately that privilege lot apparently was ignored because some of those problems documents those hard documents with and turned some of this all the physical stuff has been richard all the original stuff has been richard as to the stuff that's copies go now and figure out what you have a right to keep in the rest should be destroyed we could do that your honor i  think that given the circumstances of this case that equity and that's this is an equitable exercise and the rule forty one does not warrant the government be rewarded at all at this point for not a matter of reward it's a matter of figuring out what's the right answer because if it's not privileged you know you don't get a windfall to say well it may be usable against my client in a criminal matter but but gee it and it isn't privileged but king sachs ok and as i said at the outset order this court order granting the to turn over its tribune or twine with the first john and i hope above a very brief the there's no question that law enforcement agencies can share with other law enforcement as we've all of that's part of what goes on but what you can't do is be a stalking horse for another reason see in violation of constitutional protections and what happened here is a violation of the two orders the search warrant and the other or the settled that no constitutional barrier exists to this norm of cooperative effort and he talks about mormon cooperation i have no problem with normal cooperation what you can't do is violate a federal judge's order and turn over disks were provided to the district attorney's office after the federal investigation concluded by the f b i agent it is true that the f b i agent who turned those  violation that essentially it was an honest mistake that supported in the record that's what the district court found there's no cut evidence to the contrary what's the problem with ordering the district court to say to order them to go look at what's been retained the copies the stuff that is relevant they are entitled to keep the stuff that has nothing to do with the case or is privilege should be destroyed what's the problem with that because the district court has already made factual findings that all of the archived backup recently destroyed that's a reference to the administrative back up documents that was the finding of the district court there's no evidence to the contrary it certainly is was not clear error to make that factual finding would about his valentine's just one little add to that and then i'll all respond to your on your honor's question and as far as the the working volumes the ones that they were actually working with are so we submitted that was simply the court found as a factual because it's not necessary your honor none of them live because the court should accept the declaration the f b i agent without cause them a nation no your honor because there was enormous amount of declarations and documents submitted to the court there was a previous it was now before the district court that's actually a good opportunity i think to address the hard copy document the so called love letter stuff these are the facts that are on the record about that the f b i seized a lot of hard copy documents during the search within four days of the search the government based upon the threats and subsequent litigation said we'll hold off on searching it for now during that litigation the special master order came out with hard copy documents what the government was supposed to do and did do was send the seized hard copy documents to mr burns attorney who can do a privilege review and prepare privileged law that's precisely what he did then he sent that back to the u s attorney's office and around february two thousand and twelve by that point the government had already tentatively to decline the investigation so basically well is there a list anywhere of exactly what you still retain there is no list but it is evident from the record what has been turned over what has been retained what has been retained according to the record is copies of the two disks with digital data that the record to say hey how do we know that all those things are not still in the government's possession the answer is we look at the evidence that was submitted to the district court we look at the district court's factual findings and in the absence of any evidence to the contrary the court is other than the two no your honor government is no no more than this decide to do it's just that representation yes it is your own and that's going outside the record to say explicitly say it like that yes who does that were turned over plus the hard copy documents the government still has the rest of all that stuff as found by the district court as evidence in the record and it's based upon my outside the record now representation based upon representations to me from the f b i is that of the working hard copy left overs were destroyed all of the administrative archive backup versions were destroyed why shouldn't you go back to district court file an affidavit signed by you that says this is what we've got because it's not necessary your honour's already told us stuff that's outside the record so we really don't have any way to confirm it or or for them to challenge it because it's already in the record i mean it's not explicit like that coming you know it's in the record you just you're speaking off the record well what what's in the record is sufficient to support the district court's factual finding that the administrative backup copies were destroyed and it's imply a factual finding that the working review volumes were also destroyed there is support in the record for that it and not only that  wasn't necessary because the evidence in the record was sufficient absent any evidence to the contrary how can they controverted how do they know what you destroyed and didn't destroy well if i mean came up with you said gee you know we've we've gone through a diligent search and this is what our list is and if it looks to be credible you know it's one thing to judge the ok by it but you kind of just winging it it's hard to tell what has and what what has not been destroyed what you still do and still do not have what because we would submit that it is evident in the record basically the agent's explanation of what the review process was what was turned over what wasn't a district court found that it was evident in the record to make the necessary action no explicit and implied factual what happened to the valentine's ok right that's actually an excellent opportunity here's the story of the deal with all the hard copy dockings that sort of started it before they go over and they seize a bunch of hard copy documents they bring it back to the office litigation ensues the parties agreeing the special master order that hard copy documents will be sent to mr burns attorney to review basically to do an initial cut for privilege and prepare privilege log all of those things happen materials came to mr brown's attorney baird the previous law center back to the u s attorney's office in around february two thousand and twelve in the materials that he cleared for privilege he sent to the desk and it basically said here's the disc here's everything that we're not claiming privilege on so to the extent that they were materials included on those hard copy documents that in fact were privilege that wasn't the government's error i mean i think that that would you still have copies of the ballot and it's yes we do because those are the hard copy doctrines the what right do you keep the do searches like this if they were to go through every single piece of paper and a huge business like that they would be there for a month they basically take files they take categories of materials that they find there they go back to their office say but they say he's made a motion that i want everything that is  relevant to the case destroyed and i'm not sure i understand why you know what basis you have to oppose it you want to as a practical matter the reason why we're continuing to hold on to the two disks and the full range of hard copy documents is because they're still relevant or potentially relevant to a pending state court case but there but you've already said that there are clearly i know that are not relevant to the state court within the hard copy documents so i asked this same question of opposing counsel but it seems to me that somebody ought to be able to take a look at the hard copies of the returns or destroy those things that are clearly not relevant to the state court proceeding and and allow you to retain anything that is her employee related and there is your honor the state court they've done that mr berman obviously has enorm have not turned over everything acquired from the search to the state court as a much of the not turned over well everything that there's the to death and the hard copy documents everything that was left over from the so there is a remedy in state court but does that mean that he can't get the things back or destroyed that are clearly irrelevant or that the state court has determined are you there pretty much throughout you shouldn't your honor under counterclaims about logs and letters and meetings and so forth and so on just putting aside what we believe we would should prevail on the the willful callous in indifference issue but just look at two through four the other elements there's really no plausible claim that those other three consider this another what you're saying is that there clearly is another legal avenue and because he got every he got he got the originals back as as your honor judge silverman was sort of focusing on he got all the original back in two thousand and eleven i mean and all these cases they all basically end up where they should which is where the district court ended up you're faced with this kind of situation rule forty one ramsden the cases the out of circuit cases like  east they all end up at the same place which is a basic compromise you got your originals back government got copies let's all go about our business that's essentially what the district court countenanced in this case that is the appropriate resolution and even if the court another way the court can do it is they  put aside whether or not the district court should have exercised jurisdiction just look at the mess what is his interest in copies of stuff that the government has that it's previously given to the d a s office what does the government nothing i mean there's really there's nothing and as far as what the d a s office what the u s is you know what the government's interest interest in keeping those materials there's a pending state court case theoretically there could be a chain of custody issue or an electronic  problem we need another copy or something like that as far as the electronic data goes and as far as these hard time with you on the relevant documents i don't follow how you get to keep his personal papers that have nothing to do with the case because they're all bound up in basically a big group of stuff that was seized but because of our agreement basically to stop searching it's one of the issues i suppose in general with electronic data there is more there than is necessary but i take it your point is that in so far as it's improper to be used in the state proceeding because it's privileged or not relevant he has a legal remedy in state court of course he does your honor that's a little that's common sense that the district court found he clearly has the ability to litigate as much as he wants and he does that in state court as reflected in the record opposing bellowed i suppose he wrote it intimate love letter to somebody it's not introduced into evidence in the state proceeding so there's no opportunity to move to suppress it there's been not offered evidence you still get to keep that just for ever what no not for everyone i mean the government intends once the state court cases over the government basically has no interest whatsoever in supporting a prosecution by another prosecuting agency the government intends to destroy it at that point is your interest in keeping irrelevant stuff in the meter because it's basically all mixed up with stuff that is potentially relevant it's being litigated in state court and we don't think it would be responsible essentially for us to take stuff that's an issue in state court and just delete it because there's a possibility that they're going to need to establish that particular relevant documents are among the documents that were seized essentially a chain of custody issue that's possible it's possible that electronically the disks don't work in the lead another copy i mean when there's a pending state court case the stuff that we have mixed up all together it's not responsible for us to just start deleting that evidence the two disks and the hard copy documents mr woodman your time is just about up but i wan fight would you would be satisfied with nor that's limited to relevant documents you know that have been out of the scope and privilege review you want to we wouldn't be satisfied with that you would not know we would not go because this is the order that the district court issued was perfectly consistent with a plausible law and common sense and the state courts ability to sort through these issues in the pending state court criminal case which is the only place where anyone really cares about these documents anyway georgia over time that will give you a minute all of us big to brew points on are first of all with respect to the state court the state court is waiting on the score to this isn't we file the suppression motion back in august of last year that hearing on that motion has been continued four times with the corn what's going on with the appeal this is a federal matter if federal search warrant issued by federal agents in a federal magistrate judge a federal court needs to solve this issue this they did it is against public policy i would submit to pass the buck on this to the be a case and here out in another world in the feds in the states are all of this private privileged information that has to be returned and it is federal judges that need to take control of this case thank you mr was written