else today i would like to argue for the successful application of the turner standard to this case however there is a motion currently before the court and its motion i submitted have pointed out i sought to introduce records that were filed within the district court that went outside the certified docket sheet in this matter the reason for that being is that there were certain misstatements made at the depths and district court level and now here at the appellate level one of these documents in front of the district court at the time that court made its decision no your honor it was made subsequent to the entrance of the order on november eighteenth two thousand and five the reason  i believe that the submission of these or the supplementation of these records is appropriate because that squares with the man jeannie case i cited where a motion to supplement was allowed bring documents and as originally argued at the district court these were documents for the inmate john with the roach work on and they were being submitted as such that was the intent as information he referred the case to me it goes to the issue of the our argument was that these two gentlemen are in a business relationship that in a business or business activity that runs documents that an inmate is entitled to receive from his lawyer would include anything that has to do with his current cases which i think everybody in this case agrees with if he has a current case pending that's legal  it would seem that that would extend if the person is thinking about filing a lawsuit himself and he can communicate with his lawyer about that but how is that so how do you decide what material think and how do you decide if it falls within that or not your honor as recognized by judge three at the hearing this is a very unique relationship to the possible lawsuits that they're thinking about filing i would agree to that point but for now how do you tell that's the hard part exactly and judge read is formulated of an order individuals have been redacted you know here's some civil rights claims of x first since y and they have to do with whatever they have to do with what's the harm it's a very good question and i believe the judge agreed sanitized the eighteenth three days later mr evans sent this kryten bring documented in that kryten bring document was a pre sentence investigation report which had information social security numbers addresses whatever now the problem with that yeah you can strike the names but he's still getting the information and that presents a big problem for the the security of the offenses inmates with aids and getting information regarding correctional staff and he also feared for his life he recognized that there that this was a security problem i think i even asked well what's changed since then and there was no credible response again i'm having trouble with judge reads order at this point be no greater than is necessary to further the legitimate governmental interest involved well that's what i saw on the face of judge reads order or his rationale but if you read on he then refers to a lea that case the court applied it substantial interest to incoming mail and outgoing mail for human error versus martinez applied to outgoing mail as you read thorn versus abbott form bird came back applied turner versus atherley and said we have a greater interest in looking at the incoming mail issue and there is more scrutiny to the outgoing because there's a less they made it has to the courts made a distinction at that point the ninth circuit  rejected a heightened scrutiny type analysis and part of that decision also rejected some of the law that the judge read relied on and specifically it apply to all all prisoner male cases and i would submit that it's no different than a a an attorney met legal mail coming from an attorney into the institution problem then you said well there were some social security numbers and other identifying information that weren't covered by that suppose that they were modified to cover that with what would be a problem that then we've run afoul of the w said identify your legal ones that are genuinely related to your litigations is how i read this well sure enough here comes kryten brink then we and again getting back to the  that seems to me to be a problem no matter how this is worded let me explain what i mean by that and and see what your response is let's assume that there were any and an order in this case that said the only mail that can be received in legal mailed directly related to existing ongoing cases of your own which is kind of the bare minimum i would think of the definition of legal mail  what's to prevent someone from putting and anything they want to put n any way and saying that and in other words it can still no matter how tightly the order is worded someone can still get around it so i'm not sure that the fact that someone is trying to get around it should define the right i don't know if i'm making myself clear but there's one question is what is he entitled to do and then the question is you see of using what he's entitled to do which seems like a separate question but we're we're seeing this is a difficult issue we when we were arguing at the end nobody had a solution ok wouldn't wouldn't it help if you had a good definition of in your regulations of what legal me always is your honor i believe you do have a very workable a r this is such a unique the only instance we can think of where upright attorney is using an inmate paralegal to do work i mean just the fact but let's get back to what what what the current situation is unless i've missed something the current situation simply says legal mail is mail from a lawyer right and and that has worked for us and but not in this case now but cited in my brief also says well public this is a very important side issue on this what constitutes legal mal one they've argued anything public record anything public record can come in well the problem with that is public records or court filings with information regarding inmates and their offenses well but to some extent that you feel if they've gotten to the point of being actual cases that information is something on my anyway if someone goes to the law library and decides to look up all their inmate friends and see what happened to their cases they don't have the internet access and they do but they do have access to published cases and that was the distinction that judge read also made if they were published cases and we again we would have no problem but since then we have seen m attempt to obtain from the nevada supreme court what is called a bye for it was a case called by for and that ended up being an unpublished case we are trying to keep this information regarding other inmates out and on the other hand it's also private citizens now as represented by mr  so what is i think what is it that you what is your bottom line here what would what do you want your honor to the bottom line is turner versus south lee must apply to all inmate legal mal if i could have if i am successful in arguing that point and having the case remanded for a determination under that standard with what i've got today i would consider this very successful iranians findings of fact just so i have a question under that standard about the district courts conclusions concerning whether your client your clients were engaged in business with and the meaning of the nevada statute the district court seemed to believe that that engaging in business required the payment of money contemporaneously or reasonably contemporaneously for it to be engaging in business within the meaning of the statute but my reading at least of the legislative history is that it was intended to be a little broader than that and it certainly doesn't by its terms require the payment of money why is the court specifically found that the state had not shown that there was a business relationship that existed between that exists at present but that's a legal one closure and that they didn't carry their burden of proof but that legal conclusion is based on an understanding of the statute that requires a the relationship between mr ensign mr whether oh someone like mr with arrow who is active in terms of litigation inside the prison represented has an attorney client relationship with mr evans and is involved actively in issues that relate to prisoners rights including classification and other issues that are are active in the courts if you communicates with mr evans a connection with those issues and mr evans evans provides him with cases that in mr evans opinion relate not only to the case in which mr evans represents mr weather oh but also on other matters in which mr with a row has an interest and mr evans has an interest that doesn't constitute a business relationship is it your position that as long as they friends with mutual interests the fact that mr evans is a lawyer entitles him to send in pretty much anything he wants that isn't you know heartlessly otherwise contraband specifically to mr wetherell just because you know four hundred volumes quilting or whatever it is they're mutually interested in no i don't think i am because he's a lawyer and i've certainly never taken a position before this court or any court that any quilting volumes would if it's opinions that in the opinion of mr evans as the attorney representing mr with or all they have an attorney client relationship that it is helpful for mr without to see those legal those court opinions those decisions and to get in a letter matter of how people practice law i sent routinely copies of decisions to clients of mine to say you might want to take a look at this decision this is what this court has done in the case relates to years and they get back to me sometimes with some insight as a result and judge we didn't l the provision of the order that we have appealed is the fourth page two of judge reads injunction in which he first joins the defendants and anyone acting in connection with the state from denying plaintiff with a row the receipt or forwarding of legal mail which has been identified as such by the sender being mr evans when that mail contains names of parties in published cases and slash or when all other names of persons that are not directly involved in plaintiff's legal matters have been blacked out the language is confusing the result of that has been that the mail has been opened and videotaped since this order was entered so it's not scanned it's not just read it's actually video tape there's a permanent electronic record made of the contents of the privileged communications between my clients in response to that wording in the order and how it's interpreted going to what makes them privileged if they're not about giving advice about his own matters in it's circular  to go back to my example if the you know quilting patterns were labelled legal male confidential do not open because i'm a lawyer it doesn't really make them legal mail and content so is it your position that simply everybody has to rely on the good faith of the lawyer and just go by his word that he says it's legal my own and that's the end of it well i think that certainly creates a presumption that the contents of and on the look that is labeled as legal mail is legal mail and if upon what is characterized as scanning is determined that for example it's a pleading or a court lawyer with the client was also married to a client that she could not protect privileged those items that were not related to their legal relationship in other words i mean th they were planning another crime together or something like that and that was perhaps not confidential not protected so clearly there are some circumstances same which just labeling it doesn't do it so to your view to what extent may the prison look at things to determine whether they are what they say they are and how do they know that they're actually confidential legal material well  that is up to the attorney to determine in terms of whether it's legal material or not ordinarily that is true but the problem that i am having in this case is that you had a different kind of relationship as well that is you have had an attorney client relationship which is what you want to claim the benefit of but you've also had as i understand it an employer employee relationship and i don't see how you can say well soon as he gets into prison he's only a client and we have to ignore that and in and and treat everything that comes from the lawyer as if it's legal mail even though on its face it relates to something that has nothing to do with  there's nothing that they've shown their relates in no way to legal issues that mr not just faced i said i understand there there's we're talking hypothetically here because there is nothing that has been presented at either in the trial court level or to this before the court found that the warden had failed to carry the burden of proof that's not a finding of fact that's a conclusion of law and and it's a little bit different than saying i specifically find that they were not engaged in a business relationship that's not what the court said the court said that the working had failed to terry's burden of proof and i think that's important because it didn't really resolve any credibility question the legal i mean the history of that statute is replete with discussion of exactly what's going on here not wanting inmates to be involved in helping out people on the outside or relating to them about paralegal kinds of issues that this was a big problem and they were trying to get at this very problem of the fundamental issue here as judge reed points out repeatedly in his order is the access of with a row to the courts and hi right to be represented by counsel and that's what's being interfered with by the defendants and it's being interfered with by the defendants who just claim it's a security risk without any specific findings and to the extent that that conflicts with whatever interest or concern there might be in the prison system about somebody operating a a paralegal business where they haven't shown that one exists it's the fundamental right of mr whether of access to the courts to be represented by counsel that is being jeopardized and that it was absolute being  can most effectively accomplish what in fact the and result that reporting that district was which is to have somebody who sophisticated inside the prison system that is from your with these issues that prisoners thanks david dave the garbage classification and discipline and those kinds of issues in order to prevent numerous cases being filed that don't have merit so his being having access to information that relates in and mr evans his opinion to the specific case that mr evans represents him and that existed before this litigation began of the institution this is a situation where the supposed hoc rationale when this process began before the lawsuit was filed the issue was soley with regard to the business issue there was no allegation of any safety issues in the prison thank you don evans i want to point out the mission that i have never been accused by the prison and any time in my twenty seven years as a lawyer of sending in anything that has in fact jeopardize the safety and security of any institution i have never been accused of that john has never been written not for that as far as i know it was something that i have sent him now the questions that you asked are right on point which is where does the personal relationship and and the legal relationship begin absent something that i have done to violate prison regulations and jeopardize the safety of security of the institution i should get the benefit of the doubt i've never been accused of this they've never identified anything that i have sent to mr with a row as being this is why specific thing is a threat it's always well it could and this is why the injunction needs to be revisited in our and by the way they talk about me violating the injunction  it they have not moved for a contempt citation for me violating it we have moved for two separate contempt citations against them which have not been decided is the president have to have a track record  mean i don't think that's the case i don't think that's the case however the difference the difference here is that shelled with guns and the difference here is the the relationship between a mother and a son is not privileged under the law  relationship between a lawyer and a client is only in so far as it relates to legal and fungus well not relating to doing business together not related to being buddies together it only has to do with whether it's legal advice right how does the person tell the difference if a friend or the employer is also a lawyer if i have a legal relationship with john as i do when i'm representing him then i should be given the benefit of the doubt to talk about that particular case and any other matter that i think may relate to that case whether it's specifically does or not what's happening here is for example there's a case called the phillips case which was a class action case in which the inmates case he has submitted as an exhibit in our case that docket sheet to one of our orders to show cause for contempt it's then been filed with the court stamped i then take a packet which includes that there a possibility that a public record in that instance could contain information a remote possibility yes but a docket sheet usually doesn't have much on it but my point is that they're using this but what's the point of if you send it to him with or without the person's name and at the contents of it is still just as useful to him right but why should i have to eliminate the name what difference does that make it's a public record well one of the things that the district court did find is that there are security concerns for the identification of individuals so absolutely we acknowledge that but i have never done that i've never been accused of that i have never won fully identified anyone what i'm talking about are public records we don't have that i understand but i feel that the sanctity of the lawyer client relationship has to be protected here and if ninety five percent or ninety eight percent of my communications with m are legally related does that mean that if two percent are not if i say how's your mom or if you ask me how this other case is going does that mean that all of my communications with him are now should be and was allowed to write to the clerk of the court may i have a copy of this order or the stock and she the clerk says the two and that's what happened in by for the supreme court clerk sent him a copy of the by for decision so he has it then when they try to rescind it the second time they will give the took pictures they say it quote doesn't belong to here a public record an opinion from a court belongs to everyone that's why it's deemed a public record and just because rose name is not on it as a party doesn't mean that he should not be allowed to have an unreal directed copy of that order speak and therefore that's why we don't file motions for contempt in court at this time the more that gets out in the open the more we find out about the case and the extent of this relationship what we know is he is not sending in work related to their cases it's for him to work on for cases the problem is what we're getting is a multitude of motions or pleadings with other people's names on it that that are now being litigated within the court so  then what is particularly troubling is when they write in their briefs saying there's no quid pro quo violation shit well funny enough ten days before they filed that brief i gave them mr with the rose testimony where he says yeah don evans and mine relationship is quid pro quo i do the legwork for that sounds awfully familiar again and i think we're getting to the findings of fact that weren't done