motion and what the court ordered was the broadest assault on the attorney client privilege that we have seen in any reported sitting having to do with the crime for an exception and the breath of it is revealed in the order itself because the order does not talk about specific communications it talks about categories of topics and it says that all communications whether written or oral that fall within these categories of conversations are except the from the attorney client privilege documents must be turned over and the lawyers must actually testify as to those subject matters now we believe that the principal issue in this case is that whether the crime fraud exception applies only to communications in furtherance of a crime or froid which we believe is its ninth circuit was very clearly spelled out and it's cases were whether according to the government it's enough to say that the communications are related or related to the crime or fraud that test that the that the cases put forth is that they say ok first you look at whether or not a crime or fraud was committed and whether the lawyers services were secured in connection with that and then you look at whether the communications themselves were in furtherance of the crime or fraud because the theory behind that is there will be a waiver of the attorney client privilege if a lawyer were lawyers services were secured in furtherance of a crime or fraud but we're not going to open up the doors entirely to the communications between the lawyer and the client only to those communications that actually further the crime further the fraud and each of the ninth circuit cases that we cite and that the government cites as the very language that the crime or fraud that the communication with the lawyer must be in furtherance of the crime or the fraud now what the district court did was they the court determined first that the lawyers services were secured in connection with the crime or fraud and  we believe that was wrong we spell it out in our brief why and if i have the time of the end i may go into a few points there but i'm really going to focus on that in furtherance part because i think that's the critical part right now the court then said having found that you don't need to look at the particular communications it's enough if they are related to the crime or the fraud and the district court held that the twelve broad categories set forth in her order are related to the crime or the fraud and that has to be wrong it has to be wrong because the law is you have to look at each communication and the court below clearly did not do that and the government conceded that the court could not do that because the government admitted during argument below that it didn't know what the communications were the communications that was ticking whether in documentary form or oral form they didn't know what they were so there was no ability for the district court to actually look at the particular communications that were ultimately ordered to be disclosed to the government  and the court used this reasonable relationship just in the reasonable relationship test as if there is a reasonable relationship between the subject matter of the communications and the crime whether or not they are in furtherance of the crime they get produced and if i might your arms up just like to talk a minute about the various cases that the two principle cases are bauer and chan and they're interesting because in bauer the court very clearly went through this analysis you have a client who goes to a lawyer to help them prepare a petition in bankruptcy and the lawyer and they need twelve times in connection with preparing this petition which later gets filed and ultimately it's determine that the client concealed assets in the bankruptcy proceeding i trial the government put the lawyer on the lawyer testified i told my client that he had a list of all of that sets he had to be truthful he had to disclose everything and he didn't he didn't obviously didn't listen to him because he didn't disclose all the assets this court held in that case that that communication was not in furtherance of the crime or fraud because there was no causal connection or functional relationship between the lawyers advice and what the client actually did because the lawyer said you have to disclose everything the client didn't take that advice he didn't disclose everything so this court held there was no functional relationship and i suggest you run if you apply that to this case clearly that was not done here it couldn't have been done here because the breath of the order doesn't allow for that kind of determination what was the nature of the particular communication between the client and the lawyer and in fact if you look at the court's order you'll notice that every single one of them talks about when they describe the scope what the law was with respect to borrowing money through stock lungs if there was a conversation about the legality regardless of what the conversation was the court's order requires it to be turned over and the problem with that is you could have very here and the government points to ultimate as the principal what they call nominate and if the client says no i don't own any others and doesn't report it you have a bauer situation because he's not listening to the lawyers advice where you have a situation where the client tells the lawyer i own i had an interest in ultimate before october of two thousand i had some interest in it but not tobar two thousand i ceased having an interest in the lawyer decides not to report that no crime fraud that communication is not in further incentive of any crime so it doesn't get reported and i could run through a whole host of examples for each category of the court's order where perfectly innocent communications between the lawyer and the client are held and yet the order requires that they be turned over without an analysis as to the particular conversation of the particular communication and that really is the fatal flaw with the accords with the district court's order now the government relies on chen in its brief and chance kind of interesting because china is a situation where the court has different language in different places and one place the court says it must be in furtherance that the communication must be in furtherance of the crime or fraud in order for the exception to apply in another place the court says the communication must be in furtherance or related to or related to that's the only place where the related to language appears anywhere and i  language was used loosely and was not intended to be dispositive and in fact the facts of chan are also kind of unique because in chen you have a situation where the of the defendant is trying to hide the fact from the government that they use different numbers in when they reported what their customs obligation was and when they reported what their income tax obligation was so they go to a lawyer for the sole purpose of having a lawyer file a form with customs saying that they underestimated and here's a check for the additional money we owe you because they were afraid the customs and the i r s were to talk with one another and they were going to find out that they understated the cost of goods sold here and you get around that to hire a lawyer to file follow this disclosure statement and the this court says and i case there must be a crime for exception applies because the only purpose for hiring the lawyer the only purpose was to was to help commit the crime is to file this phony disclosure statement that allowed the defendant and their mind r because in that case what you have is you have a limited number of conversations that the government is trying to get access to and what the court says there is they say the focus the defendant's focus in that case was on what the lawyer said and what the lawyer did and that's not right you're not supposed to be looking at what the lawyer does you're supposed to be looking at and what the client does and because of that they found that the exception was was proper but what's interesting about that case is that they very specifically refer to united states versus richard wrote which is a seminal second circuit decision on the same issue and richard wrote very specifically says that the relevance is not the proper standard it's not whether a communication is relevant to a crime words related to a crime it's whether the particular communication itself furthers a crime and in that case the the ninth circuit said we the way we richard roam the district court there complied with that they looked at the particular communications and they determined that those communications themselves were in furtherance of the crime or fraud and they did not they did not base their decision on the relatedness standard and they say that very expressively and cure the district court below order is that paragraph sixteen of the order the government also has the burden of showing that there is a reasonable relationship between the communication and the illegality and as a result  ruling she totally took away from the from the from from the analysis let's look at a particular communication and let's see whether or not it really isn't for the ones with a crime fraud and her decision has i think far reaching consequences because if that were to be a while if you could basically say that because there was an omission that was made in the in the thrust of the government's case really  have it's twofold one is that stock loans were taken out by mr alba tramway and by ultimate in order to buy more stock mostly and secondly that  really owned them out and was trading in ultimate as a nominee and failed to disclose that to the marketplace that's that's basically what they're what their case is about but if you have a situation minute to make a material representation in a in a registration filing or in a ten k and according to the court's decision everything related is now opened up and the attorney client privilege goes away with respect to everything and in this case if you look at the scope of the order and this is where all i'm getting a little bit into what mr cabrio is going to argue is that the order calls for not just all of the securities filings by mr bell the trolley calls for all the securities filings by genesis and what's important to recognize here is that genesis one of first went public hired need and maloney as their corporate coun and thereafter needham alone he represented them in connection with all the f c c filings all of the mergers and acquisitions all of the regular corporate matters that they have to handle well this order requires that all of the securities filings of genesis the further insolvent but again you have that blunderbuss approach where ten k covers this huge amount of material the government's claiming well mr there should have been a disclosure in the ten k that should have been  disclosure that mr owned ultimately even though as of october two thousand the government admits he no longer own them but nevertheless this should have been that disclosure and because there wasn't everything in the ten k now gets open for review all communications with the lawyers having to do with anything open for review and that i suggest you're on is would be a really huge intrusion in the attorney client one of the things that distinguishes this case from the other cases is if you look in each of the other cases the deal with the attorney client privilege you're dealing with a very discrete set of conversation or communications between we don't have the documents there over there they're out of the country and whether those conversations can be pierced in inch and you have a disclosure statement that's spiled by a lawyer given to the  given to customs which has phony information on it and barry you have a conversation with the lawyer work where he's telling the client you know you have to include everything in your bankruptcy protection here you have these twelve categories of pop acts where every communication under the sun every communication without knowing what any particular communication says is ordered by the court disclose pursuant to the attorney cli privilege and that's just not that's not appropriate now the government comes back and they say well what do we do how do how are we supposed to know how are we supposed to know that the  if we don't know what's in the documents how do we make our showing and that's exactly what the soul of the supreme court case zone is about because that's is if you make a showing that a reasonable person could believe that the schools are of the documents might lead to relevant evidence that would be germane to whether or not the government met the burden of showing a crime or fraud then the proper procedure is in camera view and that's what we suggest to the court below  said ok the government doesn't know what's in the documents but you know many if not all of those communications are not going to have anything to do with criminal conduct and are not going to be in for their own super crime the proper procedure is to have an in camera view of the documents in question and then the court can determine by looking at the documents whether or not they support the finding of crime fraud or you just record and camera order suggestion yeah the way i read that and we looked at that very carefully is what she's saying is that if you if you object if you believe that any of the documents that you have don't fall within my crime for exception i e the twelve categories then you can come to me if you have a good faith dispute as to whether it's in one of those twelve categories you can come to me and way she defines it is she says the crime for the section are all document all communications within the twelve categories that i live delineated here that's one way to read it now there would be just say well it's related  it's hard i think knowledge that one might read it that way i don't think that's the way i really don't think that's the way the language comes out and i don't think and we were in the position where she saying does you know you the attorney client privilege a threat of contempt or you can do is you can you can raise with me if you think a document doesn't fall within any of these twelve categories because i'm finding that all twelve categories take issue with the district court's ruling we think the district court to get right to the number that have the wrong focus the district court persuaded by the government that the focus was on the attorneys expectations indicated in his in camera declaration file that he said i would have had no reason to communicate with counsel except for assisting counsel in rendering legal services the communications were by a client or from the counsel the traditional widmore test is that there was no waiver of course one of the findings of waiver could be crime fraud but there was nothing in the record indicate that ultimate or mr shogi did anything other than act in the cordons with the belief that they were shogi and ultimate and their challenge to the district court's finding of no attorney client relationship first it's important to recognize the burden was on shogi and ultimate to establish an attorney client relationship that gave rise to a privilege reasonable expectations of the putative client so the question really cannot be was that belief reasonable based on the evidence submitted by the government to the district court in conjunction with the statements from the lawyers now the evidence  government in this case shows that to show never even surfaced in relation to ultimate until october of two thousand so from one thousand nine hundred ninety seven all the way clock tobar of two thousand the administrators for ultimate in bermuda  relationship for that period as well as the period post october of two thousand what happened in october of two thousand the government submitted overwhelming evidence that that is when the nasdaq investigators get inquiring into the ownership of ultimate which had been disclosed as loaning tens of millions of dollars to genesis as well as purchasing tens of millions of dollars worth of genesis stock in the public market at that time the beneficial ownership was undoubtedly trolley then it was switched to  entering into the facts of this case not only that if you parse the language used by the lead attorney ted maloney and his description of the services he provided to genesis on the one hand and the services you provide the ultimate on the other with respect to  he's very forthrightly says we provided lots of services legal advice prepared filings agreements documents and whatnot just like a corporate counsel would generally perform for ultimate on the other hand is very careful in parsing the language and what he  did he says we prepared filings for large shareholders of our client genesis including alternate so they prepared these thirteen the filings for their further large shareholders of genesis assistance from some very experienced people in my office that is true what your construction my construction is that to the extent that the appellant's viewed a certain communication to be outside the scope of that order and what that order order required was a disclosure of communications that were recently related to the services provided by night and loney in furtherance of the crimes and frauds to the extent that a problem with the communication of going to be disclosed and there are really two elements to that is a view on the scope of those twelve categories but it's important to remember in addressing the scope here that this report rejected the government's request for opinion work product of the obvious turns the court denied communication clearly is part of that category but they don't think it's relevant to any crime that's been a sort of by the government what's the government's position on on their right to seek in camera reviews that i believe that exhibit could have brought it to the court i mean it in essence it's still their privilege to the extent they want to hold it close to the vest and put the court to the challenge of a vacuum of getting the court to find specifically that this document is required to be disclosed that could have done that  good faith belief to the extent they to the extent the well here we have here we have seen what the standard is if it is a standard of saying if you think this document that the government now wants isn't one of these listed you can come in are you by or maybe it's as if you think that even these listed documents don't fall within the crime for an exception you can come ere you don't think the district court was was opening itself up to the latter do this to to the extent and i think this is actually an important point is that the twelve categories of ammunition are real substitute for what they're asking well the twelve categories of communications outlined in the order to the extent they took place would have been furtherance of the crimes of frauds that much has been made of the quote by the government at the district court level that well we don't have access to the actual privileged communications between the appellants and their attorneys that's absolutely true and you can go seek review but the two are somewhat different but they are different but i think going back to the case law is necessary to assess that in the golan case the income review was for the purposes of determining whether or not the prima facie case had been made in this case the governments have made it extensive witness statements and documents to establish the prima facie case and that evidence was not privileged the government was not relying on privileged information to make the prima  years withheld documents amounting to at least sixteen hundred documents plus potential witnesses that would be subject to i guess in camera examination by the district court that's just on reasonable under these circumstances now six hundred  six hundred documents let's say based just on the submission by the government is incredibly challenging to the district court and to the extent that again the opponents had a problem with a particular document that they believe w from what i can see from the brief i had like to address that point or other with the time i have left there are several limiting factors with on the scope of the order that the government believes actually make the order proper and that this question affirm it first the the order is limited the delisting of the stock in september of zero one and the last monies being withdrawn back to show you from the ultimate accounts in october of zero one the investigation here didn't begin until after that point another limiting factor on the actual order is contrary to the  claims the order is very specific with respect to documents with respect to parties and with respect to agreements the parents make the the claimed that the order requires a disclosure of all communications regarding the annual report for example  now another limiting factor disclosure of substantial information doesn't go towards over breath what that shows is the extent and the nature to which the targets use this offshore entity to purchase stock to manipulate the price to obtain  hundred thirty million dollars in a lawful stock loans to finance this company that was in essence broke that that money is what kept the company afloat with respect to the lawyers advice not to lie wasn't in furtherance but the case really is distinguishable because again in this case the district court refused the government's request for opinion work product that advice would be subject to disclosure here the client's questions or admissions of fact that led to the seeking of the advice could have been subject to disclosure here but the legal advice would've been his work product the district court specifically interlinear it in the order here no work product because the communications the climbs and maybe factual admissions that that client is making during the course of the ongoing fraud and statements or representations by the attorney much of which as opinion work product would be subject to disclosure to the extent  clients or putative clients here albatros it could show the other genesis management are making factual representations to their attorneys and which the making admissions about their present conduct in their future conduct that are related to this fr we have the opinion work product limitations specific documents are identified here this isn't a situation we've just asked for all letters the f c c filings that contain the misrepresentations are all listed specific letters are identified by date and party a commission has been made concerning ultimate it is qualified it doesn't say that in the in the paragraph i think i take your point that you are trying to make an overall imitation but when you use the preparation execution but that is correct and with many of those documents and the for example the first couple of categories are loan agreements between genesis and ultimately the government's prima facie case established in the district court show that ultimate was entirely a fraud everything having to do with ultimate in genesis was in furtherance of this crime in fraud from the beginning the lead targets for using ultimate to covertly finance the company and not disclosing the source of the funds then they began using ultimate to purchase stock to manipulate the stock price why is that because if the stock price dropped below the contract price on the unlawful stock loans the collateral would have had to be in return for any of these thing and in terms of this argument that in any securities fraud case you're entitled to all client communications with the attorney concerning trialing with and and that is a very good point your honor the argument of the appellant's is really asserting that well if ninety percent of an annual report is accurate but ten percent is false and knowingly false and intentionally falls well the crime fraud exception can't get to that ten percent because the rest of the document was i guess has some legitimate purpose in the context of a public company and f c c filing by definition has some legitimate purpose to meet the filing requirements of the f c c and the self regulatory organizations if this any legitimate purpose was a test for defeating the crime fraud exception public companies would have a bulletproof shield to make misrepresentations to the public through the return is what this case is about is that ten percent within the the proverbial genesis and your report concerning the specific material ultimate all of the government's request tie to the use of ultimate to covertly finance the company to manipulate the stock price and to basically mislead the market about these other two activities with there have been it's in the record that the icon i which based on the evidence that the government submitted to the district court was patently false they apparently misled the icahn group why they wanted an investment first in equity and then when the icahn group waffled at that at least some sort of financing which is where the deal eventually went but the affirmatively misled the icon group regarding the relationship between the trolley and ultimately that's just one example of the type of communication through which the targets misled potential investors through their almost from the very beginning when genesis first thought to go public back in one thousand nine hundred eighty eight again the government has been alleged that everything related to genesis was a fraud everything related to genesis that concerned ultimate was a us that was a part of this crime was a part of the of the government showing prima facie showing that the that the targets manipulate the stock price and lied about that trading activity absent some other questions from the court i think i'm finished with my presentation thank you counsel thank you  between the two of them and my recollection they did spell out the nature of the relationship and one of the things of the government keeps a middling which is a really important fact is that ultimate's purchases and albatrosses purchases were always fully disclosed every single one of them were published in the thirteen deaves and in the thirteen days because jodi's name was disclosed as the beneficial owner of the matter and in the press mr albatross trower he repeatedly talked about his close relationship with mister so there was no effort to hide the nature of the relationship at all and the icon letter was the lawyers take on the history between the two people not that there was absolutely no of correct they're trying to get all the other and again that's the problem because you can imagine a whole variety of different conversations between mr l the trial you or whoever else was involved and the lawyers about what's the nature and to address your comment earlier about the court's order or we have a some mechanism for challenging whether or not i believe a document is within the twelve categories or not i think even if it did say that i don't believe it does and i can go through the language again because i read it and i think very clearly it says you know within within the court's definition of the crime fraud exception you can challenge that it's only if something's outside of that and the court definition i think pretty clearly is exhibit b to the court's order but even with that i still don't think you would it be an appropriate order because the burden is on the government i mean we're talking about invading the attorney client privilege we're talking about the government invading the attorney client privilege and the government's coming in here and very cavalierly saying well we put a lot of limits in our order if you read that water there are no limits everything is fair game within certain categories but it's the government's burden and this is one certain law it is second circuit law it's supreme court law it's the government's burden to show that a particular communication itself is an aid is in the furtherance of the crime for exception and the government simply cannot do that in this case and has not done that in this case and notwithstanding that the court has shifted the burden and said now everything gets produced and that's what's so offensive about this order that the sixth circuit in ready grand jury by any trust grand jury basically says we've canvassed all the case law and we think all circuits agree with us that particularly where the government's evidence and piercing the attorney client privilege is is filed in camera that all of the documents that it seeks to reveal to be disclose all communications must be reviewed and camera because that is the only way to fairly determine whether a particular communication was in aid of or the district court is in a tough position to know exactly what the government's theory is in other words if it's looking at a document it may be terribly significant to the government in terms of proof but the judge may or may not recognize that you know i i'm not sure how one can reconcile at but i think it's you know i think it's an interesting question i think you know what zone says about that is they say to the district court you don't have to review the documents you know you have the discretion to review the documents or not but if you don't review them you can't order them produce because we're going to protect the attorney client privilege unless the government makes the showing and unless you actually have to look at the document conclude that it isn't for the the crime or fraud here you know there are certain there are certain issues that are just so incredibly broad and so clearly outside the scope of the privilege for example you know if you just look at the last two categories disclosure obligations of l the trial we concerning ownership of genesis but that's the kind of stuff that you normally go to a lawyer for to get you know legitimate legal advice what are my obligations and anything that relates to the lawyer telling the client what his obligations are what the legal consequences are what the propriety is whether or not the client abides by it or not in either case that doesn't come within the crime fighting section on devour but neither case even if it's neutral even and even if it's nothing more than laura just informing as to what the law is what the what the obligations are under here it gets produced and under no reported decision no reported decision with that kind of  communication be fair game and finally with respect to judge thomas your to your comment about the the ten cases of ultimate ultimate and remember the government hasn't proven any case even though they didn't authorize any what's going on here i mean the stock loans a personal bind the stock is personal following the thirteen deeds is personal but somehow they're trying to jam it over and genocide in paragraph four of the order they say the preparation form contents accurately accuracy like galatea interpretation timing execution and filing with the i c c of all these documents and then they make the statement all of which failed to disclose the relationship between albatross and ultimate that doesn't limit it it's just the court's comment as to what she's finding these things do and that's the only place where there is any any additional statement by the court everything else and all the other categories with respect to all the other f e c filings just as preparation for everything everything including but not limited to and then just as the forms thank you ar