request then there was a civil procedure is clear that you have to log there's only i believe so yes your honor if you're claiming privilege with regard to something rule twenty six requires that you somehow state the basis of your withholding the privilege or the word trial preparation materials and then so the so that a neutral arbiter the judge in determine whether it's appropriately done when you had a you say there's  position no legal authority for the opposition you have any authority or have you ever known anybody to log every letter they put back and forth between their eyes which law i cannot say that i do here oh yeah because it would be i mean i suppose there's no shifting excuse yes i'm not making some general statement i don't read the sanctions the sanctions ordered opinion as creating any precedent whatsoever for the position that a large must be created for every night or every piece of paper that's communicated by a client's a lawyer i don't think that was the judges it judges intentions again i don't i don't know for certain but i don't read the opinion that way and i don't think it appropriately is or that let me let me follow that  that is going to be relied upon or paid may potentially be relied upon to support a claim or defense or twenty six says you have to produce as a as a voluntary disclosure if you're there is something that is there and you claim that it's privileged which it would be have i think i difficult to say you can't say that i'm going to have something that's privilege and i'm going to produce that thing but it's that  the parties agree on the motion to vacate the sanctions order and the district  motion this motion to vacate it's all over the papers in the motion to make a by the by the now appellants that this was addressed to the discretion of the jobs i think it's inappropriate for the parties to say that a regard to a position of his client and he represented that these declarations show that at least part of the class action was without merit he therefore said this is what i'm basing my claim or defense on my defense or presumed then to rule twenty six a he's got to produce those documents as continuing to do so under twenty six he ended that argument then the next argument was that these are lay opinions by these to clarence and therefore you're not entitled to what they base their opinion on position unknown at least to me as an evidence teachers one having anything to do with a lot of evidence then he decides are not lay witnesses but expert witnesses and entitle to the twenty six p protection of consulting experts even though he had produced the decorations so if in fact they were expert everything they considered became discoverable then he comes up with his his notion of everything's privileged and then finally he he goes ahead and produces the documents when according to the fact finding the judge it became apparent that discovery mass was going to do that that would hand out i think was permissible for the judge to view that as which was a twenty month enterprise by the way over twenty months this went on that that was for the purposes of unnecessary delay and to impose costs on the opponent certainly a permissible permissible inference believe because once the case got in the hands of the special discovery master that things started to happen that people that documents started to be exchanged that this is a very talented and experienced discovery master who was working with parties to get the case put on us and so the parties basically put aside their objections and their motion practice for purposes of dealing with a special discovery master they did and it files that reflect codes and down codes that is being testified about by mr quits it was all submitted at the same time as the declarations and it was all presented to the district court the material that mr makino is talking about that supports the declaration was before the court what the fights about is whether you have to look for everything that the declarant may have looked at and that on that issue rule twenty six does seem to distinguish between people who are lay witnesses and people who are experts and there was never as in many cases here never a decision on that it was never a motion it was never any guidance for the court and the court in its final pinion did not consider whether the parties were substantially just by making the objections to this objection the possession of control objection the general objections it's just not there and it needs to be because it's the legal standard under which you need to review this kind maybe some extent it's been asked but what do you say what do you let's would be to remain and it with respect to this particular issue i think this judge has gotten himself so far into the situation that it would impact be unfair to the parties to him and to the same person but you're suggesting that by by dint of judge gardner saying it was thankful behavior here you know i don't think so you're either let me go back to the x party issue which you were asking about before and thought was not a good argument let me remind you of how that arose one it wasn't something that was already prepared it was something defend the plaintiffs are prepared if towards they spent sixteen hours billable time preparing it there's some dispute about that right  right in this case and then after dependency asked for the opportunity to file proposed findings and are denied they call these folks up and say come on in send this your chart the plaintiffs improve it the documents to go to the what it is shoes and certainly conclusions in the material that go directly to the question for example of how the meeting confers or gun evidence that is contrary to what was the issue that you've mentioned i think you judge slover said the court had closely supervised this case i think that's part of the difficulty here in fact the court had hand i believe two meetings one of which might telephone with counsel in advance of the class action this is not a situation where until the special discovery minister came in and i re with mr brook you know she did move things and that's why there's the additional production this is court the transfer have been read by whoever spoke so that it can be sure that it's accurate as the whoever is transcribing it well know the intricacies