fifteen minutes to present oral argument and from that mr jalili you may save some time for rebuttal should i say five minutes for yes yes all right yes all right italianate proceed when everything came to light in this case with the rest of christopher girard in early october two thousand and five that in case who at the time was director special education was asked his boss and another member of the control group at district will have a superintendent that time roger firm to conduct an investigation into what happened with an eye towards probability and make changes to it if you want to feel it took it down it correctly you can amend it you can add to it there there's there's a lot of what we have here is odd dr kate's writing down in his own he and his thoughts impressions as he interviews occurred in this case occurred in the special education department the hoffman estates high school all of the children involved were special education students all of that teachers and staff are going to fall under dr cases line of supervision as the director of special because four people within the district at the time that this is happening the only people he would actually report it reported directly to roger for the superintendent associates are intended was there because he's he's just he's involved in all that occasion issues anyway i then there's dr gates who's involved in all of that stuff as well in particular in this case because it was all involving the special education program so at the time dr case was conducting his investigation he knew the reason why he was doing it and the reason why was to to prepare back to the control and they were these you can see from the nature of these notes they are not the type of thing that's going to be placed into the school and so unfortunately the order by the trial courts to disclose these notes was i think based on a misinterpretation of the consolidation court case because when you look at the notes and compare it to the salvation where they develop objective evidence and that's why in that in that in that case that objective evidence was not considered to be work product or attorney client privilege but really what about the issue that he started conducting these if there was an investigation at the high school level that was conducted before i was involved or before i talk to any of those people that it started with the principal and the assistant principals and the dispute or the the week we have that happened at the school in the principal wants to find out what happened and so she has her social principles and going out there and doing that investigation this is a different animal here when we're talking about the district level the district knew from the moment this thing happened that it fame that certainly the information that dr cates obtain the factual information which is interest first and that within his notes he broke down facts impression should be in a separate document from from where the statements are they should be sinker gaited and then when you talk about the the video that you you know you try to say that school took photographs can take videos they can come back and do any of that any time they want it's not impossible for them to secure video on the school but it's not but it's not privilege does the plaintiff s the right to see the well i think you're mistaken if you're going to use something to court the other side has the right this is what i agree your honor if we're going to do something or the other side has the right to say we don't get to hide things from them and spring them on them later on that's idea behind it is to protect the right of an attorney generally speaking to thoroughly prepare his case and to loot a less diligent and to syria turning from taking undue advantage of those efforts i mean how how do you translate this information that was prepared well in advance of any attorneys or anyone else even being called in that this fits into the work well first  prepare a case for his attorneys have i think if we look at screen for what it says it is it the work product the bison material prepared by or for a party in preparation for trial so whether or not it's an attorney there or the party themselves cates the director of the special education yes and he has unique knowledge and experience and expertise in this area for the district yes ok so how do you distinguish the fact that he was asked to conduct this investigation because of his unique knowledge and experience and it was really fulfilling his role as director of special education so how do you distinguish then in terms of him doing a fact illinois they've got five very large high schools and there's all sorts of staff and saw that the fact that that that's probably the best use was done at the school level that is that the type of investigation that's going to be done and in a normal situation where you have an incident between students or involving students that's going to got the school level and maybe reported up to the district as to what the final word this was a completely different case this was a case where they knew based on the nature of the allegations and what they were hearing that there was going to be investigation well they wanted dr taitz to conduct an investigation based on his knowledge of the people involved in there been a nice clean line of demarcation if this whole thing were just turned over to  i certainly certainly wouldn't the would have been better then in hindsight than retrospect but i don't think that affects the application of attorney client privilege or work product especially when the wall says material prepare by or for a party so there's nothing limiting a party from conducting their own investigation we know from the consolidation holmhurst the cases that a in the house people and they don't even have to be attorneys and none are so it's a risk management or they can conduct these the records not sufficient you've been given everything that was in the amended privilege like everything that a judge dyleski ruled on and i think the orders are clear as to what he ruled that now i will say this in our in our we should have been more specific in the order of the work really that i was otherwise you see there happens to be rules as to what is really good said one of those rules is the case of person aggression this is not right i would like to start out by clarifying i think of question on the timeline that counsel mentioned in his argument you mentioned the drug was arrested on october fifth of that he was involved in like over six or seven i believe at that's that's her contention her answers generac a phrase that she didn't know anything until she was told by one of parents in support on september twenty first so we already have according to the information that we have the privilege  the special ed director conducting an investigation into what the special education students and faculty were were doing and not doing and seeing in that city you know that's it just that since one of the things you this because it's his job to do it and he's doing it before her girard is arrested he's doing it before mr katyal is retained and i'm sure that mr patel was retained early on as he says because that's what he says but it's still a couple of weeks brought in and they were given the of the not just effect fine but also to make proposals to the district this is how we're going to prevent this this situation from arising the future we're going to discuss policy changes they went to the retention letter feel recall and and and went down the hole whole line that we had none of that here we've got the special ed director doing the special ed director's job something happened on his watch and he has to find out what yeah what about the argument that then he's doing this anticipation of mentally disabled students are raped by a classmate under the noses of teachers we're supposed to be taking care of them that there might be litigation he hot yes of course but you know is it also the job of the school district to  provide you know protection and adequate learning environment and a safe place for these girls to go to school yeah the so we have both we have a conflict here and if they want to try and separate them out they have to do something more than was done here that would be my closed as an investigator well can you wear a different costume on on him and say well now you know he's he's somebody else that you has already and that's what you're asking can we put a different  can we put a mask on now and signal he's an investigator even though he is still the special ed director and that's still his job to figure out what happened and he's still got to take care of this situation in his district under his watch so i don't know that you can responses to inquiries from counsel if there are such things in there where he's referencing that that's probably going to be privileged i understand that but beyond that no i really would would kind of dig my heels in a little bit i don't think we don't know exactly what the superintendent said from the the the privilege like we don't know exactly what the what was directed in terms of you know anything at the privilege luggages is very generic it says you know he made a fact finding mission it doesn't say he was doing it for an attorney it doesn't even say that he was going to share it with the assistant superintendent or the superintendent or the assistant principal it says it was personal and kept in his file and under lock and key and never shared with anybody what about that i'm not a target  the schools permanent record but it's still something that he's done as a school employee in the course of doing his school job certainly these nodes are discoverable i would think attempted to resolve the dispute with opposing counsel yes although there is a case from this court and don't ask me to remember the name off the top it begins with g that says that once you get once once you have a case management conferences applies here once you have prior rulings on discovery of we no longer have to go through the entire two one k process and the reason for that is if you know at that that point it becomes an empty exercise if you've had the initial of point where the court has intervened the trial court has intervened and said ok we've got a conflict here you do this you do that and it doesn't happen and the trial court continues to intervene we don't have to have because you raised it in terms of what we're asking and asking the court today we are asking the court to dismiss you feel because of the uncertainty of what's been ordered and we do try and counsels clarified a little bit of that here today or he's attempted to i think trying to tell us what it is that the the trial court actually ordered as a public house i'm looking at the the orders and trying to interpret them and understand them and i wasn't entirely certain myself and i was trying very hard to understand what it was that the judge blessed be had ordered it is that the hearing transcript that the hearing transcript is in one hearing transcript the only one and the at that hearing transcript as the court may have noticed is really over whether or not this should be considered a motion for sanctions which is what trial counsel brought or whether should be a motion for friendly contempt which is what the but not the reasons why the court was allowing in the turnover order is in the record it's confusing if you try to there's a couple of paragraphs that seem to contradict each other names have been crossed out and so forth what i'm saying is that the court's reasoning for you know these usually turned over that's not in the in the record we don't have the other thing that that i'm saying is that the you know that also goes to the incompleteness of the record and you know it's a matter of if this court doesn't have a sufficient record on which to and i don't know i mean i saw obviously in going through the records that there's a sealed envelope and supplemental record the one by him that was a sealed up for appellate court use only and obviously remain sealed during its i retired it was in my possession i gather from comments made by the court today that that envelope has been opened in but look at i don't believe that there was ever a motion filed in this court to permit documents to be filed under seal pursuant to the appellate court will seventeen now if i'm wrong i apologize but that was my understanding from from acquiring that that there was no such such motion i didn't see it addressed in the reply brief so my concern is that that's not properly necessarily before the court the court has the privilege why and you have to describe what it is that if you say they did they didn't really claim or they didn't claim it at all they said that they didn't specify any privilege whatsoever attorney client quote product or anything so there is no privilege claim whatsoever in the in any of the amended privilege wives and there's a number of them in the record the last most is in the record of our c ninety four thirty through forty ninety four forty three there's a generic description of each one so those are the reasons why we ask for either dismissal or an affirmative either way i believe it would leave the contempt order in place and would leave the turnover order in place and require these these matters to be resolved the trial court the courts raised the question of whether or not the the contempt finding should be vacated there is a question here as to who's actually before this court of the notice of appeal was filed on behalf of the school district and i'm behalf of counsel and and while i understand the counsel it's traditional for counsel to you know where the jacket on these kinds of cases and and and take one for the team that was not the order entered in the trial court the trial court did not enter an order against katyal personally the trial court entered an order against the school district and the principal and the two teachers were defendants in this case so the principal and the two teachers mr mcnamara masonic and the principal ms bush are not against him that was never entered so the only one we're talking about is the school district my thought on the the occasion of this is in the cases i've read when you ask for from the contempt citation basically by the time you get to that point the trial judge knows it's coming opposing counsel knows it's coming everybody knows it's coming it's like that you know if you do this i can't go there and and it's not you it's me it's my client i can't do this then it's where judge as well i've explained my reasons and this is what i want you to do and if you tell me you're not going to do it i'm going to enter you know this order and we'll go from there that's how you test it here you are saturday time passes then we get a letter saying you know we decided not to comply and if you want your depositions you better not ask for any more you better not ask for this information and by the way if you want to bring a motion go right ordinarily see in these cases where the court vacates the contempt citation we didn't have it here this is a case that is now almost nine years old from the time it's been filed we're are now in their twenty's it's been a long long time we ask that under the circumstances you would not be inappropriate and i mean no disrespect to mr katyal i mean no disrespect was firm i certainly have the greatest reverence for mr j judge but i would ask that in this case the contempt citation not being vacated thank let me ask you this judge because a bar association will never approve that city it goes on your record and it's not a wonderful thing to have ceded the situation could be turned around did this in a willful manner that he didn't do look to protect his client's interest when i really believe that what i believe is that there is no contempt judge just discordance point is well taken if he if the border is against mr if you follow up up then i think it warrants serious consideration of whether or not it should be thinking but if he is not the subject of the i'm so they're not a part of this right now this is the district an individual defendant on raising this particular privilege and that the in terms of the that order itself i think it was against the district but i'm the one representing the district on the one advise sell but that's why i think that the courts agreed with that if it were that it was just the district has it's their privilege that's being served in the sense that they are unable to they have no right to search for the privilege of dr cates acting on behalf of the in the control group of the district well it's because i think that's what us to do to hold the defendant what was being argued in front of them and i think the report of proceedings is very clear i know we only have one transcript and it's the transcript from the finding of contents but what judge cholesky is clear on in his plaintiff's counsel that we intended to not comply with the order and we were going to look for a finding from the contempt and then the very next day i got a notice of depositions for the witnesses that would be implicated in some of the stuff and i cite i was confused by that i wasn't sure if you thousand and five it doesn't mean he began his investigation in two thousand and five again this close to that the nature of the fact these are personal notes and not reports that were created in order to place him to the persons of the school records they were person his personal notes and he had not everyone at the school in the district other than maybe the one teacher was the separate issue it had no idea that anything was happening at school prior to the arrest and so although dr case h on he began this investigation because he was not the one holding the superintendent's office and said hey we have a problem i'm bringing in the associates who print pendent and i'm calling the attorney and we need to start our investigation and you're going to go do it  as opposed to the official school records every single every administrator that i've talked to a school district administrator that i've talked to in this case when they find out that their personal notes are discoverable like the principal and the assistant principals in this case they say every work product and attorney client in this instance is going to have a major chilling effect on the way school districts have over there really wasn't the case loud there suggesting that schools or school districts in it in doing this sort of thing when somebody complained it's made it somebody certainly extending some case law i think the only reason the only reason the extension would be that this involves a school district and the director of special education as opposed to the individual who worked for that risk erie in the consolidation c and that's why we i don't think that it's anywhere in any of the you know the cases we have right now and a bit of if you if you respond or investigated point because you have an obligation under multiple layers of legislation what we drew the line at is saying ok now leave the school where everything happened that one of the district or the district level in or over she five or six different schools and we're way up there in the control room that's why this is outside the norm and education at that school hour and they were poor to the principal of that school and the principal with them reports of the people that the district love ok and that's where we threw the law that's right when we got to the district level we didn't we didn't refuse to turn over the notes of the