for the record this is in re application of chevron corporation number ten days forty six ninety nine and purposes we're here today to deal with the the motion the motions motion and responses that were filed just prior to christmas i understand that what we have is counsel for the plaintiffs first is that ok why don't we there's no times sat so we're just going to deal with it in order to get the issues out of the way so once you begin mr t it is important to understand the context in which we ask this court to maintain in place the stay that was entered before christmas as a result of the district court's order and all but what's the status of what was to have occurred that been postponed most pound indefinitely and that relates to mr blair said mr vega yes your honor indefinitely so it's not postponed to the seventh you know it's postponed indefinitely there is no new date definitely my clients were asked to publicly state which we did that we had no opposition whatsoever to the adjournment of the criminal proceedings respecting the individuals the republic of ecuador went to its client the attorney general of ecuador and asked if the attorney general would go to the prosecutor general who under ecuadorian procedure is the chief prosecutor and decides the schedules and request that a an adjournment take place we don't know what happened in the interim we only know that the hearing was cancelled and that there is no new hearing coming back to context if i may so is that a reason that what you're saying there is the any reported need for urgency doesn't exist as much as the other side claims is that is that we will certainly argue that your honor certainly there is time for the district court to do what we believe it should have done a careful review of back to back the context as a consequence of the district court's decision all privilege documents of all attorneys who have worked on this matter who are in the past currently and indeed in the future have to be overturned over two sheffer by way of contrast chevron is under no obligation notwithstanding believe them or not the charges made against its employees to turn over any of its privileged material whatsoever this occurs at a time seventeen years into a legal battle when the court ecuador sometime in two thousand and eleven is expected to render a final decision why does it happen it happens because the district court concludes that mr cohen's a very well known lawyer from philadelphia that his brief appearance in a documentary film resulted in a total subject matter waiver of all of my clients not mr cohen's my client's privileges over a seventeen year period the district court reaches lengthy was that appearance you said there are five excerpts that are say you know minutes we're talking minutes not hours but how many outtakes five were referred to in a district court's opinion or the district court i submit reaches this conclusion without any evidence that a single privileged document was submitted to or used in a judicial proceeding in ecuador therefore impossible to create an intra judicial effect and i'm going to focus on that in my argument i submit to you in the broader contest that section seven hundred eighty two which is a limited device to gain discovery aid in a foreign proceeding was never intended to allow federal courts to tip the scales of justice in favor of american defendants in foreign courts especially when that american defendant rejected an american court in the southern district of new york and specifically asked after nine years of form not inconvenience litigation to have its case heard in ecuador it is that the thing that's going on here is i mean you've got a very experienced bright savvy street smart district judge and something has caused him to say look privileges you don't talk with third parties and here you've got stuff where people are filming what would ordinarily billy be considered to be privileged it is my understanding and i realize i'm touching on the merits and i don't know but just seen enough the context in which he made this decision is one that i'm not happy about but it's there there are seventeen different federal courts in this country that have been asked by chevron to deal with these issues s gone one way some of gone another way some have decided maybe there's a basis for crime fraud we'll talk about that later some have said there's no basis for crime for a judge kaplan in the southern district of new york has been most vocal he was shocked and dismayed zakaria not mr collins mr don zakaria's level of appearance and frankly the things that he said that trained as a defense lawyer all my life i would never have said and he was shocked by that and to some extent he was also faced while the new york times reported on some of those absolutely and he was faced with a january five deadline urged by the criminal plaintiffs he said their lives were in jeopardy and he was faced between two very tough choices one choice was to go through the normal procedure that you should go through to analyze whether that was really waiver or whether doc subject matter waiver should occur but that would be very time consuming with fifteen seventeen years of documents numbering more than fifty thousand or decide what was decided there i think our judge here was affected by the same thing he looked at these outtakes he said no lawyer should be doing this this is not what lawyers do privilege or something that sacrosanct and that's maintain what i suggest that maybe he overlooks is that that and this is the first time i've ever lived in this world ok i'm not a cause lawyer i don't go into jungles most of the my most recent six years has been spent the chief counsel for the city of new york on nine eleven cases before judge hellerstein but it's a different world for people who fight someone like chevron who have to go into the jungles who have to drive public opinion as well to bring pressure and my reading of the most recent decisions of our ethics authorities say that's part of the responsibility i'm not saying how he did it but you have an obligation to represent your climb including getting his story out there now i think this judge who i think is i don't know him well but everything i know about him is careful was led to make some fundamental errors that i will discuss because he was appalled at the extent to which mr don sicker and to a much lesser extent mr cohen said ridiculous things in connection with the pending criminal charges against the two chevron attorneys in ecuador but i thought they also wanted to dock the documents with respect to the  cases and what drove because i argued this before the second circuit and if you read the second circuit's opinion they were disturbed ok they had to look at a judge who also is is as a reputation for being a good jurist and very careful and look at my argument which essentially said i've now been brought in filed my first notice of appearance in the vampyr to do two things to try to see that a judgment that will command international respect is in ecuador is interconnected if i have to try to work to clean anything up i'm going to try to do it and then if that judgment is rendered in favor of my clients to try to seek international enforcement because in the intervening seventeen years chevron has stripped ecuador of its assets it is in to take a couple of weeks to write the merits brief but i don't think anything more than that and it would be impairing material in what you decided in admitted lee a different issue but in the case that arose from i believe the district of new jersey that's also before this  which in which you have set a schedule it's now i believe under consideration by the panel but you allowed a couple of weeks for merits briefs to occur you know if something happens in the interim now and that criminal proceeding gets reset i sure my friends from chevron will be quickly back here to suggest that you alter the schedule and candidly i won't oppose that ok but to allow a couple of weeks for this merits briefing to take place before all of the rest of the documents are turned over to chevron and most importantly and i will be asking this court that if you allow the state to continue you specifically direct that chevron is not to continue to take these documents that it already has and turn them over to the press and do other things with them it should the state means the stay and we're looking for a couple of weeks to be able to argue on the merits if i may turn to the merits because i think that while the court has tried to do the right thing it is committed to obvious errors of law which of course are reviewed to novo by this court and three exercises of what i would suggest are abuse of discretion the first error of a law on the merits was like always well i'm not sure that i need to get into the merits for today but it i'm only concerned about it because i need to show you that i have a substantial prospect of winning on the merits now i know it's a sliding scale the greater my prejudice which i suggest is terribly great if my clients are going to lose absolutely all their privileges now and into the future may not require much demonstration with respect to the two with respect to prevailing as a matter of law but the short answer is and i won't elaborate all of them the district court failed to take cognizance of the distinction recognized by this court the first circuit the second circuit that public disclosure of privileged information matters whether it is in in the proceeding and affects the fairness to the determination of the truth process or extrajudicial like a press release or a movie this was extra judicial and those courts cited in my brief uniformly hold that where it's an extra judicial disclosure of privileged information you have to operate with a scalpel and not a chain saw which is what the court did by declaring subject matter waiver you need to look at what was waived you need to fairly decide the documents that therefore should also be waived but everything does not automatically become waived for example i've said to you my mission now is to provide advice on issues of international judgment enforcement that's one of my responsibilities i've just come into the case why should my advice memoranda where they do appear in mr don zucker or mr cohen's file to my clients hired to be sure that a judgment with integrity is entered be forfeited by the happenstance that there is this brought up respectfully overly broad decision by the district court in philadelphia the second piece of that error related is that in this court's decision in westinghouse versus republic of the philippines the court said that there should be a careful and alice s a balancing as to exactly what needs to be disclosed this court said the district court said that doesn't have to happen here i'm rejecting the i'm not doing it at all because of the sort of it gross nature of the way for we've searched for every case since this court's decision in westinghouse and could find no rule of the gross nature of the waiver suey generous decided by the district court that excuses the district court from performing the analysis that this court requires under westinghouse by way of abuse of discretion or simply cut it the subpoena should have been limited in scope the court said it would and then its opinion it didn't it said i'll only require everything having to do with the ecuadorian litigation nine years of work not the new york litigation but then it's used the term related now understand the practicality here mr film maybe for very good reason mr cohen is interested in showing the world he had little to no part in it so he's interested in basically showing he's got clean skirts in the affair and while he's doing the right thing by saying let new counsel for the plaintiffs argue their privileges he's doing nothing to defend their privileges and the net effect of that is when you when you look at the order that the district court entered that says related to and when you figure out who's going to make the call as to what's turned over based on related to there's going to be a very generous turnover of documents i suggest to you virtually everything the last privilege the last abuse of discretion issue and it is troubling to me i troubling to me my partner argued this before the district court before christmas and asked for a brief period of time for stay to take this matter to this court he asked for couple weeks denied we denied a day denied a minute denied and the court was quite clear in what it then set the court said in the transcript i do not know whether an appeal of this order will be taken and i'd like to do what i can to eliminate the appeal he then threatened that if we had the audacity to appeal he would go to the question of crime fraud and he concluded by saying if it is perceived as an attempt to chill an appeal yes that's exactly what i have in mind respectfully this is a judge who felt very strongly about these issues but it is not the province of a district judge to admit on the record that he's trying to chill a party's appellate i thought to know what is that sometimes the judge will say i'm not writing on the issue because it's not necessary to write on that issue in view of that this position making but if there is in  doubt your daughter's right approach it's perfectly appropriate to say i don't need to reach this question now but this wasn't said in that town and that the transcript even without the tone speaks for itself i want these documents turned over now i want to discourage you from your appeal right when you marry that up with the failure to to do the things that i have just outlined you become very concerned bluntly that justice was not done in this case in philadelphia when we hear from the ship the filming of crude several hundred hours of filmmakers following around plaintiff's counsel stephen don sychar who was the star of the movie who solicited the film who invited the filmmakers  he was working for the cone firm being paid by the cohen the firm at the time and joe cohn on multiple hours and that may be an exceptionally good argument on the merits but at this point we're trying do we get to the merits because if we lift the stay in effect the case is moot while you're on of that i'm glad you asked that because this is like a replay of what just you could still maybe subsequently if water relief if we do grant a stay here and we expedite it like two weeks two weeks five days years here's the problem your honor first of all we don't come here on a clean slate  been four circuits and have addressed exactly these same issues in every one of those instances the second circuit multiple times the d c circuit the fifth circuit the ninth circuit they honor bringing that up because that was then one of the very first seven hundred eighty two when there were no crude outtakes when there was no don sigur testimony and disclosure of his documents when they we had working for the court appointed expert at the same time that that was a blanket waiver and crime fraud there was a stay there but that was then this is now we were in the dark then because they fought so hard to keep us in the dark now the light has been shown on outtakes if they stay with it expedited briefing schedule is granted what is the harm i'm going to explain it as clearly as i can you're honest because it's not just had in ecuador the court there in mid december december seventeenth issued what's called the autos the autos is a of the parties that we're going to go to final judgment now it's your last chance to make your closing argument in writing something that the parties are doing this very week and that court we moved to give what we do here i have absolutely affects your honor because that how does it affect what we do here because that's why we want the discovery we need it now they're going to the final judgment stage in ecuador and that's what the court has told us you don't have to take my word for it mr t firm and i think he said he was you know had just come into the case they've been working on the case for months to you but you've already got documents from the second in a second circuit case right you got from mr dog we got from mr don's here but here's the difference between mr d is still a part of the cover up and the fraud fighting at every turn to try and prevent the truth from coming up mr cohen has said very openly and we take him at his word that he wants to tell what happened attorneys have forthrightly said to judge the boys that they don't disagree that there's been a crime fraud here and they don't disagree that we should be entitled on this discovery they want to produce i agree with you it's not his decision alone describing what steps they're going to take next they said that this outpost order this is how they described it they said quote shortly before judgment and quote the ecuadorian judge will issue an outhouse and that is the judge cone material for the criminal prosecution of players in vegas but actually people in areas are and to be held that that's what this is all about how does this affect chevron because the judgment could literally be entered to day how does that affect the criminal procedure but your honor it's not it's not just about the criminal proceeding they have an application and chevron has a seven hundred eighty two application and judge the boys granted us to both and found that both will be prejudiced if we don't get the discovery  know cohen's notes help you in the chevron did absolutely do on a for the reasons that judge greenberg pointed out were trying to show that these multi billion dollar court expert findings urgent need because a judgment could be entered against us at any point and they will run around the world literally mr dunn's and his words to wreak havoc on us by trying to enforce that judgment in venezuela and angola and nigeria all around the because they know yes they they could a judgment is going to occur the judgment will establish both liability and damages once that judgment is entered and the court their words by entering the outhouse is saying that shortly before judgment now's the time we're going to have judgment now that cook initial judgment at any moment and your honor asked the right question which is what happens when the trial court enters judgment is there an appellate process and that court is the trial court in connection with the the and the the answer is yes there is but again the patent box firm and its own internal memo from the summer tells us that that will not substantially delay enforcement and indeed it lays out a strategy case there are three very distinguished one former judge two very famous lawyers in the international community it's a very distinguished panel and here is another thing that you need to know about that case we have sought the provisional remedy that they shouldn't be ecuador very important because of what's happened the outhouse is showing final judgment eminent that arbitration panel very distinguished wrote to the judge in ecuador a month ago and said please tell us give us some estimate and this sort of gets to the merits but it's an issue that concerns me the issue is the waiver of the attorney client privilege here by virtue of the decision of that circuit in the clos fun book as well iran because what i'm concerned about here is the breadth of the way for i'm i'm pleased that your honor asked about the merits because danziger had committed a waiver because of his you know delay tactics and not producing a privilege long judge kaplan had found that he had substantially waived already and then because he was dilatory when he was ordered to produce forthwith which in the southern district requires a privilege like at the same time and didn't do that that he got a blanket waiver he got a substantial waiver already and then he had a blank so the facts there were somewhat different correct but let  pro recognized in tellico is that there's nothing unusual about an extrajudicial waiver when that waiver though is intentional and causes prejudice or unfairness or was done to advantage one's litigation position so that you are using the privilege invocations as both a sword and a shield under those circumstances that the only fair thing to do is to recognize that there's been a bro waiver let me give you the exact language from below the x you quote the extra judicial disclosure of an attorney client conversation one not subsequently used by the client to his adversaries  budgets does not waive privilege more broadly in van bulow the issue was someone after trial one below he'd already won the trial he clearly wasn't allowing his lawyer to put those things in the book to try and gain any kind of litigation advantage and then subsequently von bulow got sued by family members including his wife over you know the torts that had been committed she was in a coma at the time so the court concluded a blanket waiver under those circumstances would have been unfair he wasn't doing it he wasn't waiving for some kind of litigation advantage here judge the boys found exactly right and it's an abuse of discretion standard he said this was done for tactical litigation reasons it was a concerted public relations strategy to try and force chevron to settle or to influence the outcome of the litigation intentional his words and this is what judge the boys held absolutely consistent with von bulow and what this court said in westinghouse that unless the partial waiver would be unfair to the parties adversary that's exactly what judge boys found it would be unfair to us because of their intentional waiver to try to influence the outcome of the case and to force chevron to settle through a film that was going to give a one sided version that didn't reveal the cabrera fraud that didn't reveal all the other fraud have gone on here and the threats and intimidation to judges but it was designed to prejudice us in the case and to force us to settle that it's unfair for them to say i'm going to allow filmmakers to film me for hundreds of hours i'm go solicit the film and have them do that the most intimate strategy sessions about legal strategy about settlement strategy about their exports and what happened with cabrera and to not say that that is a blanket waiver judge the boys had it exactly right when he wrote this is a truly exceptional scope of waiver quote given that these disclosures were intentional and covered the entire scope of the ongoing lago appiah litigation did he look at all the he had dozens of  it's more than an hour it's probably less than ten it was the highlights it was the highlights but there were does a lot of a hundred hours and your honor those outtakes showed private meetings in mr cohn's office where they were discussing some of them where mr gonzales but but your honor it's not limited to what was in mr gonzales mr don's ago was on the vast majority of the outtakes and in the vast majority of the film and he was literally working for and being paid by the cohn law firm during this period of the time to review and gave each side hours of argument on those how takes danziger saying that it out maybe a judge won't be killed but if he thinks he will that's good threatening to close down the court argument i let them speak for themselves i don't ask you to trust me i use his words this is a case where the other side in the race wants the delay or some discovery at every phase and wants to speed up the judgment and have the documents that have been given to you to date been used in connection with any aspect of the ecuadorian proceedings absolutely your honor and in the bit arbitration and we believe that what mr karr but we and fraud that is going on here and that's that's what every court that has viewed them as has found it appears that there's a big enchilada so why is it that you want us to decide this minute  effect the merits of this case relating to mr coe well actually your honor the pruett outtakes are extremely important evidence that should convince you that they have no lightning and as you said you may be right right in what you want us to decide in effect as if we live to say as i said before if in effect what it's doing is it's moving the cases and your honor you are rewarding full panel that it would didn't move their appeal that this court could expedite the appeal and if the court found otherwise then you could issue appropriate orders that wherever we use the documents we should try and retrieve them and what would you expect t by treaty compact between it was that was it was not they didn't raise it when they've lost it so often collateral stop eventually comes into play but if i can just respond to your honest question yes the crude outtakes are extremely valuable just the discovery we've gotten from m dancer has been extremely valuable though he's fighting tooth and nail not to admit it in this deposition but mr cohen and i have to make this distinction mr dancer hasn't produced everything mr cohen as already before the was put in place and we haven't used his documents anywhere your honor no matter what mr terrill said mr collins documents once the stay was entered we have not submitted them anywhere waiting for this court but mr johnson are in fact even though he's been on the case for seventy years produced fewer documents even with his complete privilege of lawyer but if the cone documents or is important as you say they are and we're willing to expedite the matter you know what we normally do in expedited significantly why is it that you don't even want us to do that your honor it's for the simple reason that literally any day the court in ecuador could enter a judgment and th submitted yesterday that the court allowed time for additional briefs in this case is gone for nine years you're trying to make us believe that the decision is going to be made overnight when the court clearly said in that document that  they were allowing for additional briefing i mean i'm sorry which one the documents we got yesterday from the clerk it was headed by i believe it was submitted on december twenty ninth as judge kaplan who's lived with this case the longest he did both the crude outtakes and dancing or as the second circuit which is reviewed both have recognized this is not a situation where tactical to prevent the information from coming out before ecuador enters a judgment they've now succeeded in getting us to the judgment stage in ecuador and that could happen any day ok here it is since you are s your honor i mentioned that earlier when the court in ecuador denied last week our motion to revoke that order we literally have had a week to put in our final papers they're called the gato and we are putting that in if not today or tomorrow so that's that's happening you know you only have a matter of days again don't take my word for it in the patton boggs memo from the summer they say you have a short time to put in that final brief we're putting it in today or tomorrow and that's the maximum time you have you have literally i'll take your word and you just i want to be crystal clear about it because judge kaplan and the second circuit denied stays repeatedly because as they found and we put the documents before judge boyce exhibits eighty seven through eighty nine the pattern of appealing seeking stays giving only a little bit of discovery so we had to go back in to compel this is what's happening in don's acres case that pattern has been one orchestrated by the plaintiffs again counsel don't take it from me take it from their own words i urge you to read exhibits eighty seven and eighty nine where mr charles colleague specifically wrote in the context of one of these earlier seven hundred eighty two this is what he wrote in may tw months ago mr trial didn't just come on the cases from has been on it for months called what about the following as a strategy a move for stay if we win great if we lose we produce whatever we want narrow we'd  complains and then we move for clarification if we lose again we think about another appeal to which mr dancer responds i like the approach i like this approach that's what they've been doing with every court and in the second circuit and before judge kap he said anough he set their arguments were not entirely in good faith i just danziger the plaintiff's lawyers the second circuit said no stay they live with this case the gun is to our head we're in the last go to the injury to mr vega if the states continue one of the four factors under the fourth act or state test the polyphony are hearing that ecuador in the criminal case has already been scheduled twice and the latest postponement is i think we made clear in our submissions to this court was based on what the prosecutor down there said was a scheduling conflict between this case which was scheduled for today another case which he had to appear in court on friday  scheduling of the hearing and given the reason for the a request of postponement one would think that the postponement would be temporary i don't know when your honour's but they're certainly not putting it past the realm of reality that in a few days from now they'll be a notice say next monday saying we're going to have the hearing you know next thursday or friday the thirteenth of the fourteenth so that recognizing your your honor's concern truncating of the discussion of the merits into the stay litigation if that hearing is rescheduled in that type of time frame or anything close to it even an expedited briefing schedule of the type that your suggested which would put even expedited briefing into february to be followed by argument and then whatever time would be required this court to make a decision won't be quick enough for the applicants to use whatever evidence that it certainly appears client would be able to use this information from mr cohn's files at a later time at the case and well we're not saying that it could not be used right at a trial what we are say and this legal arguments your evidentiary arguments in support of the dismissal dismissal of the charges that is certainly or intention well i understand use the evidence that we've gained both independent of the seven hundred eighty two process as well as record showed that before judge the boys absolutely at that time the declaration of i need to know so then secondly we intend to do that part of the evidence that we intend to submit for example has to do with how the prosecution of this case hav united states analogy is akin to a violation of eighteen u s c a thousand and one essentially making a false statement in a public document we're not conceding that those elements were met obviously that's the nature of the charge and then and they're residents of that no they're not the court for well they were charged allegedly based on conduct that occurred while they were fifteen or so years ago in ecuador they don't reside there now extradited i mean they have not yet the national honey is to understand this so they're not in ecuador so that it would be very difficult to try them  litigation that sets him apart from our perspective from some of the consultants and others who have been the subject of seven hundred eighty two actions and he is ready to reveal what he knows and based on what we know from other proceedings he has evidence that goes to the heart of the arguments that we intend to make defending mr vega from these criminal charges both relating to the fraudulent cabrera report as well as frankly the entire overarching picture of this case which is the criminal prosecution be instigated just now hanging over our client's head the district court in its supplemental memo denying the request for a stay said that it's specifically said and it recognized the evidence that we submitted that one of the battle between these folks here and chevron over here in the dock with other locations in the united states are you trying to get documents and of those how many of them are you currently getting documents  currently the only other pending perceiving where we're getting information is in the case of mr dunn's or otherwise the other seven hundred eighty two proceedings that we have filed we've prevailed in every one of them we've got the a seventy four years old the native of ecuador he's a lawyer in acquittal for forty plus years with a clean record as an attorney all that time a practicing lawyer in part of his career he represented a predecessor to shove in the course of his work he signed a release and because he signed the release in our view and we think the evidence that we've been able to develop in the seventy two has shown that stop a tory evidence that these plaintiffs engender a claim a criminal case through the government against my clients in order to advance their civil case that's my theory i want you to consider me assisting in within our system the significance and preliminary hearings almost all exist non indictment of that kind of thing etc the difference in the system we're talking about an acquittal and the charges judge member of our articles three thirty eight and three thirty nine of the ecuadorian code exactly as mr in making it very clear determination which is whether the purpose upon or hearing is whether the case will proceed to trial or whether will be dismissed sufficiency of evidence and the whether the evidence a goes towards the elements of minimal standard of the me judge the consequence in addition i understand why the court's asking about stand we have a chance that's i think the practical thing is especially with this extraordinary powerful  doing this for twenty four years clean five years a federal prosecutor i have never seen lawyers conduct themselves in the way that these gentleman including with all respect i know mr combs known here in philadelphia i'm not from here and i'll be careful b a lawyer to say and i'll take i think judge boy sauls as to material put in front of the attorney general of ecuador well if the time comes we could make this go away and judge i've never seen that kind of stuff and it's recorded american and i say this with great personal understanding he cannot return to his country without risking his liberty because of the conduct of the folks represented by these terms now but my point is if we were to lose at that hearing is delayed indefinitely i guess what we were told a second it can be started on the notice that doesn't make much sense yet has to be some doubt us yeah no good answer is no no it's just but judg happened this was continued once before from october or november january fifth they set the date and there were this is a very unusual circumstance where there is an indefinite continuance not far in the future judge greenberg but as you asked before but an argument is as a criminal defense lawyer for someone who could face extradition from hayden i it is a risk what are the chances of his being extradited your honor i wouldn't want to run that r in miami and ask for bond but i think you all know that's not that's extremely difficult and the defense is on an extradition at that point for neutral magistrate become technical have they met the requirements a timing i can add two weeks two weeks and five days and at the time the time this call to to roll something could happen i know we could run back but there is no different time but what you are saying is if you get these documents you can only judge that i want the court to bear in mind that judge kaplan judge dubois the second circuit and as recently as yesterday the special master had asked these plaintiffs to to stop their proceedings as to chevron and also as asked us and with regard to several day had never they have never been willing to stop anything to allow any court to do rational consideration as i know is your preference of course going to cause the rest of the the judicious time taking the time to do it they had never been willing in fact they asked for expedition after such requests as to shove or as to us very brief this suddenly realize they have a trial and generous and they have not made it easy for us or for you to do this in a in a we're leeway and i ask you to take that into account when you consider i understand never before any other courts the decision in new york was based on a new york local court rule in a failure to timely submit a privilege walk that was the basis of the waiver not the issue here with respect to the d c circuits decision it also had to do with the pri this court is going to be making in the first decision with respect to von bulow or westinghouse and go to the issue of that's at the core of this i hope what we've got is balancing certainty against uncertainty with substantial risk on both sides the certainty is if you release this stay chevron will take all of these documents i frankly chuckled when i listened to mr master read my memos he makes my point h he'll release all of these documents to the press and use them immediately will it be moot you've asked the question it won't be moot on the supreme court standard the supreme court says maybe you can fashion a remedy that will try to fix it but ninety have ron could gain by releasing the documents you know they make interesting reading that anybody who wants to read that but like evangel would think in terms of the relations people have engendered stories because what's really at stake they're afraid that a judgment will enter in ecuador that they're predecessor texaco destroyed an area of the ecuadorian amazon the size of rhode island and they don't want that judgment enforceable in the united states but why would releasing the documents to american newspapers have i remember years ago i once had a case of this is the general somebody said the television station if you don't come one you'll have problems because the side against the state is coming on in the judge decides on the basis of television i'm outta luck but i don't think he will i mean why is i mean what is that to do with any chevron believes respectfully or they wouldn't be doing it consistently that by claiming fraud crime and other things they are so casting aspersions on the integrity of this case and on the integrity of the ecuadorian courts that no united states in foresman court will enforce that ecuadorian you know i tell you son we can go out on market street and i can stop a thousand people before i found anybody that knew anything about the whole thing that's the truth a member of this i've learned that about and you'd be happy you know i don't know no i mean my wife says that i've reached an age where i don't remember tomorrow what i did yesterday and so perhaps that's let me just finish the single thought i never knew what the certainty is that we will lose our privileges and the documents will be circulated uncertainty and speculation at this point and what drove the other courts and doesn't exist now is that whatever it means the january five date is off indefinitely