coverage of documents and once those documents are produced the cat is as they say out of the bag and as a result this is indeed a classic case for the use of the petiti number four which relates to the persistent abuse of the rules in some fashion which is not related to this case at all this court has made it clear it is not a necessary factor quite the contrary it would be surprising when you have an issue that we have here which is one of true first impressions alongside a persistent abuse issue and that issue of first impression is really a two fold here that is responder to a rule thirty four request has to simultaneously with a response to the question file a privilege floor and response was filed in a timely way within thirty days of the request the rule thirty four request was served in november of two thousand and two within thirty days a timely through the beginning of december whenever he was the rule thirty four response was provided to the provision of the log on april thirtieth so that's four months plus another that's five my side when the response a privileged lock at the time it served its discovery responses the court agrees that there could be no more automatic waiver provision and i think we have to urge decision i think it is very important that we not last hear from the critical issues first of all the rule thirty four doesn't operate that way rule thirty four doesn't require miller very wisely point out that is not that is not when the information is being healthy when you are referring to rule thirty four rule thirty four makes it very clear that first you still file a response doesn't say the documents are doing thirty days you can read thirty four from beginning then you will never find that rule thirty four says you shall file they were sponsored and that was functional state that inspection and related activities will be permitted as requested doesn't say produce the documents in thirty days and that's i think the fundamental error and the clear error of law that's involved here i mean as a practical matter the impact of this is enormous and as a practical matter this is not the custom and were available for inspection and we were withholding documents under covered by the privilege that is what is required under rule thirty four and so we didn't need an extension we were time when was the mo well which one there were two motions the first motion was filed in april of two thousand and three it asked for the privilege log and it also asked for a reorganization and indexing four does not does not require the production of documents in the response the response is quite different this is not as if we were responding within  forest for example your honor and a position where we had to ask for additional time because we were going to be withholding information as the rules we were not at the time we responded withholding information sitting at least in montana federal civil procedure will be that we will have to basically turn the operation of the rule on it if it can be waived but not absolutely and that automatically and in this that is why this case raises such a crucial issue because it was an automatic parties before the court should be brought into action and what's happened here is the judge has flipped this in essence the magistrate and the judge and said you know come to us for an extension that's upside down we to agree on the discovery which is unfortunate but that seems quite apparent from the record that there was not a successful effort and the judge here did not deal with the judge who said i'm not going to review these documents for the privilege i'm not going to look at them last it's gone so no there was not there was not a review of the issues related to the documents and six hundred of these documents were committed late perfect and under this order we are being forced to produce them so to say that isn't the purport of this  conan position i guess i'm trying to understand now that nature of the four hundred additional documents are you saying there's some question as to whether they would be privileged even if everything had been time timely according to this district court yes according to the district court because everything was done may it please the court i'm julie mcgarry i'm from bozeman montana and i represent the caps knows the real parties and interest in this case before i start i want to clear something up there has been absolutely no agreement between the coun late that seems troublesome why shouldn't it be troublesome it shouldn't be troublesome because the discovery process itself is supposed to be a search for the truth it puts a burden on the party who is going to withhold documents to properly and timely assert the privilege that they can enjoy the benefit of the protection of the privilege it puts a burden on the party withholding the document to clearly establish for the court and for the other party that that the privilege exists and under the discovery rules it creates of a fair playing grounds for all parties so that the requesting party can know that within a reasonable period of time they're going to receive the documents that they requested so that they can proceed with discovery to follow up discovery hire experts in relation to documents that they find and so while i can understand your point i think that the rules of civil procedure provides that there are there is a proper way to protect the important attorney client unless they request an extension from the other party which i would have easily have given them or they ask the judge for additional time and if it doesn't happen if that if that doesn't happen then certainly the withholding party has an obligation to take affirmative steps to reassure the requesting party that the privilege alive is forthcoming and they have an obligation to give it quickly having knowledge of who the attorneys were for the parties were having known about it in order to previous motion to compel and it took into consideration a number of factors when it came to its ultimate conclusion that a waiver had happened and i would like to be able to explain those factors for to the court because i think there's a crucial here this court knew when it made its decision that burlington northern had made a blanket objection at the outset it knew the burlington northern had never requested an extension of time to file a lawsuit that burlington northern had never filed for protection it knew the caps most had requested burlington northern to give stop there seven months later burlington northern provided a revised privilege log which it asked plainest counsel to treat as it would placement log for the log of the file of the documents contained in the new  because they've been clearly in existence they should have been disclosed back in april burlington northern then filed a third law and then a fourth log and then the captain was filed a motion to compel because the combination of the four logs was confusing it was frustrating the captors were having to take the so called replacement logs and go back to the first logon to cross checking their documents removed there were other documents added some old some new it was hard to believe it was hard to trust what what was accurate and it took a lot of time on the plane of counsel part the court knew that burlington northern had previously produced seventy thousand documents critical part this court knew that fifteen years prior to this motion to compel burlington northern had established a document repository at the office of the end counsel in helena montana those documents were documents that were produced and reviewed by burlington northern from an attorney's in at least five litigations before the captain all of those litigations related to this document was positively being established in helena and he says that it's going to basically be the place where all the burlington northern livingston montana documents will be kept and he also says the privilege log sent to hell and over time that changed in that all the documents ended up in helena montana as our understanding that the court ultimately did not accept and by burlington northern arguments in the br documents for over a decade it's our position that this court knew the circumstances before it and that it properly exercised its discretion in managing a pretrial with regard to both motions to compel the first motion to compel we are wrote to burlington northern nj lawyers on at least two different occasions and i spoke personally with burlington northern lawyers to try to ask them to please organize the documents so that we could make some semblance of them because to look at seventy thousand documents that don't correlate to discovery and there aren't all the parts ecology documents that month place and all the financial documents in another it  compel with regard to the motion to compel on the privilege last we asked for a log from burlington northern after we received their original objections and we were told that we were told by phone and we were told by letter it would be forthcoming when i needed to begin discovery and other counsel did as well by looking at the documents in helena and when we didn't get the privilege logged in a timely fashion we decided we need to go ahead with discovery and do the inspection even without the log but then we filed a motion to compel because we felt that that was the only way that we could move them to give us the log that the law has was only a start i think that the opinion actually recognized that rule thirty four must be read together with rule twenty six b five that those two rules together set out how  facts and circumstances before them when ruling on an important matter like waiver of attorney client privilege i think that this court can recognize that this was not a waiver sanction but it could also recognize that it was in effect a waiver sanction this judge he didn't he didn't find this as a sanction he determined this was waiver under the rules i believe under his discretionary powers but he could have also invoked rule thirty seven because of the facts the key facts here that that were evidence of foot dragging dragging and a cavalier attitude towards the discovery  comments are very clear of the role twenty six there is no such automatic way so on as far as just going to your question about the order i think the order needs to be first of all they find that there are t clear errors law here that are critical number one you do not under the rule thirty four or rule twenty six be more general conclusion if you are not required simultaneously there is no automatic waiver that must be remanded to the district court to review that issue was there an abuse should there have been was there a waiver here but that was not the finding thirty four is unique and there is no law to support it thank you