michael dempsey for gerson fox your honor i just want to emphasize one thing at its heart this is a case about whether the attorney client privilege that person fox held was waived and the court will recall that at the beginning of the discussions between the fox family on the one hand and buck holder on the other based on the declaration of ted fox and based on the e mail that mr fox sent to buc mr fox said fox made plain that because of gerson's age and ill health he would be the one who would be handling the communications the written communications on behalf of groups  buchalter is a california law firm fox as were california residents it was the litigation at issue was filed as california state court litigation the retainer agreement was entered into in california  perlman and under blunder robinson is that the orders of the bankruptcy court and the district court allowing the production of the records to go forward was immediately their party because they seem to be very interested here i mean that was the rule and perlman i mean that that wouldn't have a incentive to so but here buchalter seems quite interested in the preceeding but calder had a  economic interest they were not a party to the litigation they made a claim in the bankruptcy ultimately for some eight hundred thousand dollars and that claim is now being arbitrated before judge division you're saying this is a and suspenders request for leave to appeal but when you look at perlman and you look at blender robinson those cases say that this is an immediately appealable order so why did you stitching under that discretionary standard because the district court denied leave to appeal no i understand that and when i looked at the briefs again over the last couple of days i asked myself why did we do that and it was belt and suspenders your honor that's all i can say i certainly have a serious policy question about that i realize that the case law the statutes all go that way but what we have here is a situation where the parties entered into a california agreement under california law for california litigation and there was a california understanding and three or four years later when gerson fox filed for bankruptcy under this application the law his understanding that he had not waived his attorney client privilege would be stripped away at its heart this case is about whether gerson fox waived his attorney client privilege by allowing specs and maybe understand what should being upset about yes i do understand the bankruptcy law and i do understand that the no no i'm not asking for understanding i don't know i don't want to know what's in your heart or what you've learned what is the answer to judge a quick last question yes bankruptcy law applies i recall that was that when i was not the question the question was federal law applies  and under federal law so i mean you know all that stuff about the beauties of state law you know you know all of that stuff me just wasting time you just wasting your time right i  disagree but under federal law persuade me i mean i am not you know you know so this photo and you spend all the time talking you know is how so what's the connection what's what why you spend your client's money talking about something that as best i can tell you  i see it as relevant because during the time of these communications during the time of the writings that issue it was covered by california state law which takes a more relaxed view of what liaison can and cannot do and question is whether underfed no the question is so what that's that's now the pending question the so what is this under federal law there was a requirement that it be shown that it was reasonably necessary or necessary for ted fox to act on behalf of his father in sending these communications and we believe that the record that was before the bankruptcy court in the district court did that judge that's all federal law i'm still waiting to find out so what about all that stuff or state law that you were talking about so what i mean look the problem is every time you get into federal court and you have parties are held dealt with clients before they got in the federal court their privileges were entirely controlled by state law that's just the way it is because you you know that you live in the state and you pay then you get in the federal court and when federal court we have final published law and sometimes i guess is i forget exactly those  privilege law any more applicable here than in the other fellow case well the way i see it is that when these communications took place it was state law that applied in government then the case winds up in federal court and now the question is whether the showing that was made in the federal court was sufficient to preserve the privilege we believe that was judge blue bond disagreed judge he disagreed we asked judge blue beyond that in light of her disagreement we'd be allowed to weeks to submit supplemental declarations that would go into the issues and questions she had raised and she said no and we think that was an abuse of discretion did you ever ask for evidence or hearing on that issue what we did ask for was leave to submit additional declarations on behalf of gerson fox's condition on behalf of whitehead fox to provide more detail as she had asked for one of her questions was you haven't shown like for instance whether he had all signers we asked judge blue bought for two weeks leave to submit additional declarations to deal with the specific issue that she had raised what was it about gerson fox's condition that required ted fox act as a liaison in sending and receiving gerson's communications written communications and that was denied did she say why it was denied she said you've had enough time she said you should have known this that's what she  gerson fox and ted thought that deliberation submitted to the federal court described gerson as being old and infirm and in need of his son ted to help him with this the record shows that ted made that express request and stated been about oral communications all of the court will recall that in mr or monza declaration submitted by the buchalter firm in opposition to a request for a stay he says that during the first as i recall it was four months of the you offered to submit declarations that did refer to his mental competence but declarations would have referred to his lack of skill and inability in written communications via emails the way ted fox communicated because what we're talking about here is that ted fox emails to buchalter and the buchalter e mails back ok well at least one of our colleagues clarification there were over time but the the the privileged communications that you seek to protect were e mail communications is that correct that's correct only e mail can only use it and so  ted was asking only to be the agent for those communications that's  c twelve ninety one that being a final decision of the district court this was a denial of a leave to appeal that is a discretionary action of the district court and i know we have jurisdiction under twelve ninety two  you said one time in english so we had a litigant asking a district court for leave to appeal contemporaneous with that request was a request for sta pending appeal what impact is the denial of a stay pending you are asking us questions have a i'm so you're asking us questions it's not your job your jobs to give us answers i understand so so tell me make your argument protective order had the effect of compelling the disclosure of the allegedly privileged documents did it not absolutely or so why isn't that like a mandatory injunction that would be appealable under twelve ninety two i think the issue is what is on appeal before this court is the district court's denial of the motion for leave to appeal that is the precipitating event that ended the appeal it's not in a firm it's not a reversal it's not a reverse and remained but that wouldn't need they wouldn't go under three go under a one because if it is in effect the final order because it has the effect of the end of directing the production of a document how else would they possibly think we view of that so in the ninth circuit i'm not aware of a published decision by any court that addresses the issue of my brief cites a first circuit case that says a district court sitting as an intermediary appellate court of a bankruptcy decision appeal because those were the two motions before your honor ok and so in denying that motion to stay i'm still wondering why that doesn't come within the language of twelve ninety two a one an interlocutory order denying an injunction i think the issue is what is to be stated i'm not sure what appeal or what right would be stayed pending appeal when the underlying appeal is dismissed by virtue of a denial one i don't believe that it's an injunction within the parameters of what that statute considers but if nonetheless moving forward i want to address a few points there was a significant amount of discussion about the lack of evidence that was presented at the bankruptcy court and the bankruptcy court subsequent denial of counsel's request to submit additional declarations putting some color behind the the basis for that court's denial in my opposition or the trustees opposition we highlighted with the proper standard was and how the evidentiary basis of their motion for protective order was deficient there was no secret no surprise the bankruptcy court has made clear in the transcript stated that you had your opportunity the trustee told you where your motion came short and your reply did not produce additional declarations that shored up the problems that we had pointed out so the bankruptcy court in its discretion said i'm not giving you more time you knew what you should have put forth so at the end of the day what we have now been told this was a workplace why they haven't said ok well the declarations point out two things age and health ginsburg is in her eighty's but no one i guess not not everyone would say that her age you know precludes her from conducting your old legal affairs i don't know how age in and of itself would preclude that don't use computers don't use computers don't have computers so eight my response is kind of two parks your question had a few components to it the first and foremost age and health blandly saying i'm old or i'm  issue and what we've been told at least today i first i've heard about it but the declarations that person would have submitted would have detailed his inability to use a computer or e mail but that's not the standard of that record what would you have just asked question i how about them answered my question your honor you have highlighted why it is now i want an answer don't tell me what i've done that would not waive the privilege under federal law reason being the translator is necessary to effect doesn't that beg for either an evidentiary hearing or for some further inquiry into why began this he obviously has a client who needs or who apparently needs some sort of interpretation i it could be a language interpretation or it could be the lack of computer skills or e mail skills or whatever it happens to be and a lawyer just ignores it and keep sending him the very communications that the son says he's not able to know what else do you need for a privilege under those circumstances i believe i would preface it maybe as a hypothetical your honor because i think everything that was just said does not is not supported by the record we have we have requests we have a e mail request that was ignored by the lawyer do you think that's right i think at the end of the day wishing hoping or labeling something as privileged doesn't make it so your honor there is a failure of evidence to show that the communication thr liaison was necessary the bankruptcy court rested its decision upon the fact that there is nothing in the evidence showing it's necessity i think your honour's comments backfill the lack of evidence here and i think that's the issue said he cannot communicate by email as i pointed out in the brief i fault them for padding the record because that is not contained in the evidence not only in the evidence it's not even attorney argument they don't put it in the brief but it's one of these well in their communications right yes technological prowess to use a computer the issue is does the client have the ability to communicate with the attorney to effectuate his or her legal representation it's not the manner in which the client communicate but i guess in itself it's a  you know somebody who's an executive not used to typing sort of an old style executive that uses secretarial secretaries to type up communications with the world well i think from the president it's under his his name it might say transcribed or typed by but it says president trump or president obama is saying this we don't have that here we have ted fox saying something we can we can presuppose he's saying what  n told him to say but there's nothing in the evidence for that either we have ted fox sending e mails back and forth with buchalter we have nothing that proves my dad told me to convey this to you we have and i've read the e mails they seem to be free wheeling i'm sorry we don't have anything that says this is what my dad told me to convey through nothing in the evidence in support of their motion for prayer and if there were you would stand absolutely not i think ok you keep pointing out the sayings and then when representative privilege is that was the case i thought that laid it out most is simply have to have the circuits weighted on this other circuits i don't think there's anything in our circuit not not that i'm aware if i found a circuit court opinion i would have well the north plaza case had compiled instances where the attorney client privilege had extended to third parties and it came to the conclusion that it only came out in one of two situations one where the client is a corporation so by virtue of it being a corporation it is necessary that someone speak on its behalf the other cases that it analyzed found that when it's an individual it had to have been shown that the individual w other opinions of other cases in other judgments to come to that conclusion but i agree with you your honor i thought i had those cases years on my i don't believe so you're on a district court cases perhaps i don't i don't recall that component of the case well enough to say