good morning your honor this is probably the most important case i've ever had the privilege of bringing before the nicer court of appeals and if you forgive me i'm just recovering from the  i represent mr put to lee mr medina and also myself in reviewing last night the different issues in the case i came up with six different viewpoints that need to be examined just briefly me ask your question first the district court gave a reasoned decision and granting the government's motion and your opening brief to this court addressing that actually didn't address that i don't think a single one of the reasons given by the district court is discussed in the opening brief why is that and why should we consider the arguments and response to the district court decision to a better way because you didn't present him in the opening very well i think the the issues were discuss of the court and its opinion as i recall challenge the standing of an attorney to object and i wear it where in the opening brief is that discussed i bought him versus humphrey where as i discussed in the opening grief i don't think that that is rolled into the case because of the district court did well so where is where is your challenge of the district court's order actually discussed in the opening brief it's discussed in the reply brief was not good enough don't we have to have law that says issues not discussed in the opening priefer waived there were a lot of issues discussed but none of the district co reasons were discussed i mean that's that's pretty remarkable it's like the district court decision didn't exist you were taking a moment on that one and trying again with us get to the issues but i don't see how the issues haven't already been waived well the court will note on page eleven the opening brief i talk about the attorney client work privilege that was one of the that and the court actually talked about the work privilege says it's been waived because of the notices on the e mail system and i don't see that discussed in the reasoning place either all the i've seen any of the reasons that's what stuns me i don't see a single reason discussed by the district court talked about in the opening brief you waited to the reply brief to deal with any of them because the government brought them up with the answer in brief patiently discuss the important issues in the case there are things that the court did not discuss in its order that i thought were highly relevant which i also discuss the this six major issues one has practicality you can look at from the viewpoint of a defense attorney trying to defend the client and the other alternatives  are available or not as good as e mail you can look at it from that point of view too you can look at it from the constitutional issues as to the right to counsel and offshoot of the key in case three you can look at the prison policy issues there's no reason here there's no security issue here for example in this there is a prison policy here in terms of the administration of this e mail system why didn't you bring this under the p r a well this is the policy of the justice department the young but you have you have a client who is specifically questions as to the interference of his individual e mail correspondence with others so that out of the prison no but that's a that's a justice department policy that the prison system has no control over because it's not determined by the bureau of prisons not the term and by the the tension center it's a term by the justice department issue came up in prior and couple of prior cases and was clearly established that was the policy in prison system couldn't respond to appeal or a request by saying well ok we'll make the disclaimers in larger print or put or improve the notice to all users that all communications are going to be intercepted well that would be nice with that wouldn't solve the problem because you still have the practical problem of the fact that the e mail system should be available without interference without interference oh so just as just as even just as the legal  are available are exhausted so are you saying that there were not administrate of remedies because the supreme court has said you need to exhaust administration from bodies even if you can't get what you're seeking the relief you're seeking even if it's not available from the present administration you still have to exhaust the remedies in several cases well this particular issues never been before the united states supreme court it doesn't appear to  for the bureau of prisons either because you didn't exhausted you want to take your say so for the fact that it's necessary and there's no way to solve the problem instead of letting the bureau of prisons address it well it  was brought to the attention of the district courts in new york i pointed out and the attorney general that time so you think you're exhaustion in your client's exhaustion requirement under the prison reform act is satisfied because somebody filed a lawsuit about particular facts in new york and the authority to support that proposition  the it's beyond the power of the bureau of prisons how is it beyond the power of the bureau of prisons because they're following a policy procedure of the justice of europe prisons within the justice department but they don't can make proposals as to how the policy should be written well you know i know there's a serious problem potentially here i don't know the facts of your clients raise it very well but there is a serious problem but this law been they may have exhausted remedies and maybe they can file a lawsuit is that what you're telling me but that doesn't tell me why your client can file a lawsuit here without having done anything you know i don't think the matter came up in for example th you we start of the united states district court is that the first stop in this case it was the first stop i complained in the there were three cases one of which i was misconduct by the homeland security officials the same officials we listed all three defendants as with this is in the cases and we were stonewalled we were not allowed to bring those other witnesses it for our issues i can't relate what you're saying to this lawsuit mean what's the department of homeland security have to do with this well there's always an issue and that was actually number five i was going to bring up there's always an issue of procedurally how do you attack these problems and my clients condition problem you're supposed to attack it by filing a grievance my clients were in detention they've not been convicted unlike the kick case they had case and but if those soldiers are in detention they can always that's a distinction that oh you've got a remedy you have to bring the remedy in the case in which they were convicted also in federal court i mean i've ended up i'm puzzled the relief you seek seems to me relief that should be requested in there in federal he isn't there and there are federal criminal prosecutions and yet an entirely different lawsuit is being brought to challenge what happened in their criminal case why is it filed in a criminal case because as well it's much broader exhaustion well i think we're already past that now you're trying to explain to me why a separate lawsuit was filed rather than challenging your client's criminal convictions or continued confinement in their criminal cases why isn't that a more prate place to raise exactly the same challenges you're trying to raise in a separate lawsuit in the in the arse hero case i did and i was refused ok so you appeal that that's the appeal that might raise the issues but why a separate lawsuit look at this way this is a person charged with a crime they're in detention they're arguing that their right to defense counsel was violated by interference we had we had evidence submitted by homeland security that they went into the file into the e mail files of our sierra and they had a search based upon the d n a so the minute that there's actually a form that allows them to go in and get the e mails that form none of this is answering me why he couldn't know challenge it in his own last i mean if you minutes ago you gave me getting into something establishing a broader rule sure that channel and that was a case brought by mr gideon with regard to his own conviction why didn't your clients do the same thing that answer that because that would take maybe three or four years the person is sitting in detention facing criminal wait a minute how is that any different than filing an entirely separate lawsuit and bring in an entirely separate appeal how could it be any slower to bring it in this criminal conviction i ask for some immediate relief from judge kobayashi and why couldn't you us that from the judge who presided over the criminal conviction same issues at least there you don't have a have problem i tried that but he should have appealed that case maybe how long would that take how how would that take longer than this case did among other things criminal cases have priority so they move that's been several years i guess i conclude just by saying that these are important constitutional issues that will be addressed and i can see that sometimes  individual the family maybe that's something that clients lawyer should consider well i think of that then apply the gideon we might not have the rule i think we have your argument ollie's for for reasons that there was no cement violation that the relief sought by appellants in this case would undermine the validity of their criminal convictions and thus was barred by heavy humphr that medina and mr medina and mr mchugh truly failed to exhaust the rent the administrative remedies as required by the prison litigation reform act and that mr dubin has no standing to bring a sixth amendment claim in his own right  you're the the allegations in the complaint are very specific they relate to two criminal defendants and they relate to that the that the united states improperly eavesdropped on conversations between those defendants and mr dubin in the criminal that resulted from that in the criminal complaint the criminal prosecution of the two defendants of the warnings are that the truly system uses are in the record and there before the court and just to summarize them  teeny has to agree to the first one page warnings every time they utilize the system and there's three paragraphs and in each paragraph it mentions that they are monitored that the communications are monitored and specifically that this system is to be used for attorney client communication and addition to that when mr goodman signed up for the system he was warned that the system was monitored and every time he received the message through the system he was rewarded that the system was monitored and in the face of all those warnings this essentially the circumstance where an attorney in a car engaged in communications in a crowded room with law enforcement present and that's  circumstance in that we in the united states began before this court where this court held that where the client knew or should have known that his communications were not confidential then  center is i don't know five miles from downtown but we have lots of federal prisoners incarcerated a pretty substantial distance from where their lawyers are located  even mr newman is current clients on appeal i suspect they're probably because they're subject to long terms they're probably going cursory to some place on the mainland and so it's not a simple for a lawyer and client to meet and consult legal mail is still available but the reality is that communications today more much more commonly take place electronically i would want to count up the number of e mails i get each day compared to the number of letters i suspect the same is true with you but the fact that prison officials and law enforcement are allowed to inspect e mails makes that mode of communication effectively unavailable for for many attorney client communications why is that a problem what your honor what i think well i think your honor is saying is that in a different circumstance where it particular  plain would be it was able to demonstrate that they did not have adequate access to counsel utilizing in person visits legal mail and confidential telephone communication all of which were available to the defendants in this case and and were not disputed below upon such a showing it's possible the case would be the issue would be teed up as your honor said for the farmer justice to have to explain the rationale and the justification for afford the existence of a true link system the way it is and that's not in the record in this case because those are issues that did not need to be reached to decide summary judgment in the government's favor on it in this case the trilling system what is in the record by in the declaration by ms jenkins of the v o p the truly system was created for a number of reasons one of the most important of which is that by allowing it meets and detainees to communicate with loved ones with friends through this email it would greatly reduce the burden on prison staff to search physical mail which they must do in every case to make sure that there's not contraband and it's an effective tool in that regard now that this is the record is not fully developed in this case as to why the prison  p s determined that the e mail system should be the way it is fully monitored because those those issues are not necessary those facts are not necessary to arrive at the conclusion that this your court did discussions but what's relevant in this case is whether these appellants have stated or have brought a sixth amendment claim that requires the invalidation of the important issues to discuss it is clearly the case that those issues would have to be brought through the prison litigation reform act process and it would have to grieve that and explain what the hindrances are in their communications with their attorney and the v o p would have the opportunity to resolve that issue either at the facility level by as judge or scanlon stated by perhaps making the warnings bigger or by  removing some other impediment in attorney client communication or at the v o p wide level there's no reason why i could not if i went over phrase that there's been no showing by appellants that the beauty is incapable of creating a brand new system they may very well have good reasons why they don't want to do that but it's certainly not inconceivable that that a new system could be created hasn't been put in the record i can say a usa practicing in this district that many districts and district district included put in back stops to prevent the attorney client privilege for  communications from reaching prosecutors usually with the use of a team team within the prosecutor's office but that's an abundance of caution because the prosecution team doesn't want some minor detail that was in discussed on an e mail system to ruin or call into question a perfectly valid prosecution but the government takes the position that any communication that the prosecution team would be well within their rights to review every e mail that is or every electronic message that takes place in the system because it's the kind privilege is clearly waived and the system is the inmates are advised the system is not to be used for that purpose if i could briefly address the heck the humphrey rationale i think it's it's even more clear why i had three humphrey and the cases that followed are important and good laws in this case know the court can take judicial notice of what's in the opening briefs in both of those cases but there is no mention of the violation of attorney client privilege or the sixth amendment in either case let me ask you this if we got past that's right that there would have to be in order to show a sixth amendment violation there has to be a showing of prejudice and so if the court here reached the merits and found there to be a violation of the sixth amend implicit in that finding would be prejudice not simply if a violation of the attorney client privilege standing alone is not a violation of the state's committee requires that additional component of a demonstration of prejudice so in his criminal case i mean there could be a determination that government review of attorney client communications violates the the way that i think of the case is that if if this was a different lawsuit that was complaining about that the attorney know that the system is monitored and because that system is unavailable to them to communicate confidentially that itself is an undue restriction of the sixth amendment protections that case might not success in that case might not invalidate the criminal conviction of the  found that the sixth amendment was violated with regard to the government eavesdropping on those e mails and discovering the trial strategy i think it at least calls into question the conviction and perhaps there needs to be there would need to we have a case that's per se reversible error i would agree with that that it's not it's not per se reversible error but certainly what what appellants have asked for in terms of relief in this case is the reversal of their criminal convictions so how i imagine that mr dube and his clients see the lawsuit playing out is that if they were if they reached the merits below they would introduce evidence demonstrating that  right and i think and and that's why here if they if they made it all the way to to the merits and they would in order to achieve the relief that they're seeking which is the reverse of reversal of their criminal convictions they would have to put on evidence that that the sixth amendment the alleged violations of the attorney client privilege caused harm and prejudice in their criminal cases if they  did if they did so successfully that would absolutely and necessarily invalidate their criminal convictions so the focus is on that part of the relief sought by the complaint that's right that's right would be a claim in the complaint for injunctive relief for example that we would not share knowledge the invalidity it's the piece of the relief that says my rights were violated and so the relief should include knocking out my convictions that's the part that you can term runs  the present conditions claim based on the allegations in this complaint i don't think they've they've adequately raised it because of the waiver part of the waiver if the allegations in the complete relate that the sixth amendment right was way absolute your honor i was addressing judge could his point about hypothetically if a sixth amendment case could be made out would that necessary necessarily invalidate the criminal conviction our overarching argument and position in this case is that there is no sixth amendment violation because the attorney client privilege was unquestionably waived every time they communicate on the