[00:00:02] Speaker 00:
Case number 18-1537, Bradley S. Waterman, appellant, versus Internal Revenue Service.

[00:00:09] Speaker 00:
Ms.

[00:00:09] Speaker 00:
Laverson for the appellant, Ms.

[00:00:10] Speaker 00:
Wolfinger for the appellant.

[00:00:13] Speaker ?:
Ms.

[00:00:13] Speaker ?:
Laverson.

[00:00:20] Speaker 03:
Good morning, and may it please the court, Stephanie Gleiverson for the appellant, Bradley Waterman.

[00:00:25] Speaker 03:
The key question in this case is whether there are segregable factual allegations contained in the three withheld memos that can be disclosed to Mr. Waterman so that he can respond to these accusations that will haunt him for the next 25 years.

[00:00:38] Speaker 01:
The district court didn't make any findings on segregability, did it?

[00:00:43] Speaker 03:
That's right, it did not.

[00:00:45] Speaker 01:
So what are we supposed to do then?

[00:00:47] Speaker 03:
So we asked this court to resolve this case.

[00:00:50] Speaker 01:
We think that the... Don't we have lots of cases that say

[00:00:54] Speaker 01:
That's not, under de novo review, we have the power to do it.

[00:01:00] Speaker 01:
But for efficiency reasons, we just don't do that.

[00:01:04] Speaker 01:
That's the job of the district court.

[00:01:06] Speaker 03:
Well, we think for efficiency reasons that it's the most expedient reason.

[00:01:10] Speaker 01:
First of all, isn't that what the cases say?

[00:01:15] Speaker 01:
Yes.

[00:01:15] Speaker 01:
The cases say that this is a pretty straightforward matter for us.

[00:01:19] Speaker 01:
We just remand it to the district court and let them make

[00:01:24] Speaker 01:
the segregability determinations?

[00:01:27] Speaker 03:
Well, no, I think the

[00:01:30] Speaker 03:
The case law says that this court has the power to do a de novo review of the question.

[00:01:34] Speaker 03:
And under Ryan, that even questions that were fully briefed below and where, for instance, the IRS had the opportunity to fully air its position, that this court has the power to reach those issues.

[00:01:47] Speaker 03:
And for that reason, we asked this court to find that the factual court.

[00:01:52] Speaker 01:
Remind me, in Ryan, did we do that?

[00:01:54] Speaker 01:
Did we make segregability determinations here?

[00:01:58] Speaker 03:
That was not a segregate.

[00:01:59] Speaker 03:
Well, well.

[00:02:00] Speaker 01:
Well, can you find a case for me where we've actually exercised that power that we have instead of remanding to the district court to do it?

[00:02:08] Speaker 03:
Well, in Ryan, I'll qualify my previous statement.

[00:02:12] Speaker 03:
Because in Ryan, what the issue was, there was an Exemption 5 issue, as well as an issue about whether the records were agency records.

[00:02:20] Speaker 03:
And what the district court had decided was that the records were not agency records and had disposed of the case in that way.

[00:02:27] Speaker 03:
On appeal, this court did reach the Exemption 5 issue and made findings, for instance, in that case, that certain factual portions would not be covered by the deliberative process privilege and that any opinion content would be without.

[00:02:38] Speaker 01:
That's a little different than what I'm asking.

[00:02:39] Speaker 01:
I'm asking whether the process of making the decision about seguability was handled, was done by us instead of being sent to the district court.

[00:02:51] Speaker 01:
I'm not aware of many instances.

[00:02:54] Speaker 01:
But maybe you are.

[00:02:58] Speaker 03:
I can't think of a case that's on point to that question in this moment, but I do think Ryan is instructive, and I also think Mapother is instructive.

[00:03:08] Speaker 03:
In that case,

[00:03:10] Speaker 03:
this court, in addition to the district court, did an in-camera review of the records themselves.

[00:03:16] Speaker 03:
And we think here, where this issue has been fully aired, and this is a question of law, really, whether these factual, the factual portions of these memoranda are even covered by the privilege, that issue must be decided.

[00:03:30] Speaker 03:
And we think

[00:03:31] Speaker 03:
should be decided here in this court.

[00:03:34] Speaker 03:
And we think the most expedient route would be if there are questions about where these factual portions appear in these memos and how expansive those portions are and where exactly which portions should be released, that this court has the power to order the IRS to produce those records in camera here for just to review them quickly.

[00:03:54] Speaker 03:
There's only 21 pages in issue.

[00:03:57] Speaker 03:
And get this question over with.

[00:03:59] Speaker 03:
This case has been

[00:04:00] Speaker 03:
active for, I believe, two years now.

[00:04:03] Speaker 03:
These events, to the extent they occurred, they occurred five or six years ago at this point.

[00:04:08] Speaker 03:
And in the interest of justice, we argue that this court should resolve this issue here.

[00:04:13] Speaker 03:
And really the question is whether the IRS has even shown that these factual portions of these memos should be covered by the privilege.

[00:04:21] Speaker 03:
That's the first question that must be answered.

[00:04:24] Speaker 03:
And we submit that

[00:04:27] Speaker 03:
The IRS has not shown that through their declarations.

[00:04:31] Speaker 03:
And there are a couple of reasons.

[00:04:34] Speaker 01:
What precisely is wrong with their declarations?

[00:04:37] Speaker 03:
Right.

[00:04:37] Speaker 03:
So I think there's a couple of things that their declarations do and don't do that fail to make their case.

[00:04:44] Speaker 03:
First is the rationale behind this protection of facts.

[00:04:50] Speaker 03:
Facts are protected under the deliberative process privilege because we're interested in protecting the opinion.

[00:04:56] Speaker 03:
And in this case, what the declarations do is tell us what the opinions of these writers were.

[00:05:02] Speaker 03:
So in that way, obviates the need for the privilege.

[00:05:06] Speaker 03:
If you turn to the joint appendix pages 42 through 45, on page 45, we have Ms.

[00:05:14] Speaker 03:
Rollins telling us that

[00:05:17] Speaker 03:
these writers were creating these records because they believed the referral for Mr. Waterman to be disciplined or disbarred was appropriate.

[00:05:27] Speaker 03:
In the explanation of suspected misconduct, which appears in the record on page 117, we have the recommendation for discipline or disbarment for these sanctions against Mr. Waterman appearing on that page, and that page references directly these memoranda, the Marchetti Memorandum and the Kelly Memorandum.

[00:05:47] Speaker 03:
So for that reason, we think that the declarations don't show that the application of the privilege is appropriate, and then also what these declarations do is provide inconsistent accounts of what's included in these memoranda.

[00:06:01] Speaker 03:
What Ms.

[00:06:01] Speaker 03:
Rowland's declaration did is it separated the question of the Exemption 3 issue and the Exemption 5 issue and described the memoranda in two places, one on page 42 to 43 in the context of Exemption 3,

[00:06:14] Speaker 03:
And in that area said things like Ms.

[00:06:18] Speaker 03:
Kelly's memorandum summarizes a telephone conversation, that it was described actions taken and statements made by Mr. Waterman in his capacity as his client's representative.

[00:06:28] Speaker 03:
That's on Joint Appendix Page 43.

[00:06:31] Speaker 03:
But on page 45, as to that memorandum, she attempts to argue that it sets forth part of the factual basis that Ms.

[00:06:37] Speaker 03:
Kelly believed made the referral appropriate.

[00:06:39] Speaker 03:
She also says it was to record Mr. Waterman's statements.

[00:06:44] Speaker 03:
As to the Marquetti Medal, we have even more statements that have tension with one another.

[00:06:49] Speaker 03:
On page 43, Ms.

[00:06:51] Speaker 03:
Rollins says that this memoranda summarizes Mr. Waterman's interactions with IRS personnel over a period of several months.

[00:06:59] Speaker 03:
And then on page 45, that this memorandum included a description of Mr. Waterman's actions and statements that Mr. Martetti believed made the referral appropriate.

[00:07:08] Speaker 03:
As to the Brown memorandum, she says that it describes the basic fact pattern on page 43 and that on page 45 it was created particularly to summarize the facts alleged.

[00:07:21] Speaker 03:
So what those statements do is they tell us that there are factual portions included in these memoranda and they create sort of a vague sense of what actually, how those factual portions appear within those documents and their intention with one another.

[00:07:36] Speaker 03:
And we believe that tension can really only be resolved through an in-camera review.

[00:07:42] Speaker 03:
And then the last thing that these declarations did that fails to make the IRS's case is that they don't say that there was any selection or exercise of judgment that would be revealed through the revelation of these facts.

[00:07:58] Speaker 03:
They don't give any sense for what process these writers went through in selecting, organizing facts.

[00:08:05] Speaker 03:
And in that way, what we're left with.

[00:08:07] Speaker 01:
Do they have to do that?

[00:08:08] Speaker 01:
I mean, when somebody's writing

[00:08:13] Speaker 01:
there's an investigation going on and someone's

[00:08:17] Speaker 01:
marshaling facts to describe whether a punitive act should be taken or not.

[00:08:22] Speaker 01:
Isn't the mere selection of those facts?

[00:08:24] Speaker 01:
Doesn't that give us insight into the deliberative process?

[00:08:28] Speaker 01:
I worry about what agencies will look like, what agency council determinations will look like if your reading prevails.

[00:08:37] Speaker 01:
Don't you think it will have a chilling effect on the types of deliberative processes that the act anticipates and encourages?

[00:08:47] Speaker 03:
So I think that answer, I can answer that in three parts.

[00:08:51] Speaker 03:
First is whether the mere selection is enough.

[00:08:55] Speaker 03:
And there are a couple reasons why mere selection of facts is not enough to make factual accounts part of or protected by the deliberative process.

[00:09:05] Speaker 03:
And that dates all the way back to Susie v. David, where our whole line of cases sort of takes its inspiration from

[00:09:11] Speaker 03:
that case.

[00:09:11] Speaker 03:
And in that case, this court said that courts must be aware of the inevitable temptation of the government litigant to give the deliberative process privilege an expansive interpretation.

[00:09:22] Speaker 03:
And this court then picked that sentiment up again in Playboy Enterprises, saying that anyone making a report must, of necessity, select the facts to be mentioned in it, and particularly rejected that rationale for

[00:09:35] Speaker 03:
extending the protection of the deliberative process privilege to purely factual accounts.

[00:09:42] Speaker 03:
And then the other part of your question was about chilling.

[00:09:46] Speaker 03:
And in this case, there are a couple of reasons why we should not be concerned about how revealing these records would chill any discussion within the agency.

[00:09:56] Speaker 03:
And again, I go back to this point that we know what these writers' recommendations were.

[00:10:01] Speaker 03:
And so the fact that we already know, there is no opinion or recommendation wrapped up in these facts that hasn't already been revealed, that would be revealed through the revelation of these facts.

[00:10:13] Speaker 03:
But also, we have the structure in which these memoranda were created.

[00:10:20] Speaker 03:
written by their writers in advance of a process in which the IRS concedes that would that process have gone forward, these accounts would have been turned over.

[00:10:30] Speaker 03:
And not only that, but there is also regulatory structure making reports by IRS personnel mandatory.

[00:10:37] Speaker 03:
So for all of these reasons, we should not be concerned about chilling this type of government speech.

[00:10:43] Speaker 03:
We're not asking here for the opinion content or the recommendatory content that's included in these memoranda.

[00:10:50] Speaker 03:
Partly that's because this case is an outlier and we already know what the content of those recommendations were.

[00:10:56] Speaker 03:
But also because the agency has not shown that the purely revealing sort of what they say he did, these factual accounts that are included in these memoranda, that that would in any way reveal an otherwise confidential decisional process.

[00:11:13] Speaker 03:
So for those... I have a question.

[00:11:16] Speaker 02:
On page 44 of your brief you make what seems to me to be a good point which is how can it be that there's no record that actually memorializes the decision not to punish the person immediately and instead to put it in a file for 25 years.

[00:11:40] Speaker 02:
The response in the government's brief and a footnote is

[00:11:44] Speaker 02:
Well, you're not challenging the validity of the search.

[00:11:48] Speaker 02:
So if there is such a record that's beyond the scope of this appeal, what's your answer to that?

[00:11:57] Speaker 03:
So we are not challenging the validity of the search here.

[00:11:59] Speaker 03:
But we do, to the extent there is a decision memorialized in one of these records, our point is that.

[00:12:04] Speaker 02:
So would there be a decision memorial?

[00:12:06] Speaker 02:
Are these records all from before the September letter?

[00:12:09] Speaker 02:
The ones with the letter?

[00:12:11] Speaker ?:
Yes.

[00:12:12] Speaker 02:
in a long time, there before the referral to OPR.

[00:12:17] Speaker 03:
So yes, I believe the Kelly memo is in December.

[00:12:24] Speaker 03:
The Marchetti memo, I believe, is January.

[00:12:26] Speaker 03:
And right around that time, it's important to keep in mind that that is exactly the time during which the tax exempt bond function had made its decision and that Mr. Waterman then had noticed his appeal.

[00:12:39] Speaker 03:
So these memos are all being created right at the time when he's starting this process to challenge the TEB's decision in his clients and the authorities' games.

[00:12:47] Speaker 02:
So they wouldn't memorialize the decision not to punish him, though, right?

[00:12:52] Speaker 03:
As far as we know, the only place that that decision appears is in this letter, which communicates the decision, but doesn't memorialize it.

[00:12:59] Speaker 02:
The other documents are, I'm sorry, how much before that?

[00:13:05] Speaker 02:
So the September letter is dated September 10, 2014.

[00:13:11] Speaker 02:
What's the latest of the documents that you're challenging, the 20 pages?

[00:13:17] Speaker 03:
The brown memo was dated August 26, 2014.

[00:13:21] Speaker 03:
So that's the memoranda that's most

[00:13:25] Speaker 03:
close in time to the communication of that September 10 letter.

[00:13:28] Speaker 03:
And so to the extent that that memorandum memorializes the decision that OPR then took to hold these records in this file to be used against Mr. Waterman at any time in the next quarter century, our point there is that to the extent that memorandum, for instance, includes not only a pure summary of facts, which is what the declarations say it includes, but also

[00:13:52] Speaker 03:
a decision that memorializes what the OPR eventually did here, that that also should be turned over, that that is not covered by the privilege.

[00:14:01] Speaker 03:
But the heart of our case really is that what Mr. Waterman needs here is what they say he did.

[00:14:09] Speaker 03:
He has the information that appears in the record, and it's raised more questions for him than it does answers.

[00:14:15] Speaker 03:
There's clear ways that was included, for instance, in that explanation of suspected misconduct.

[00:14:21] Speaker 03:
doesn't track with his reality.

[00:14:23] Speaker 03:
But the IRS has never said that what it's told him is the entire universe.

[00:14:28] Speaker 03:
That document references the Kelly memo, it references the Marchetti memo.

[00:14:32] Speaker 03:
And so for Mr. Waterman to adequately, meaningfully respond to these allegations, he needs to know what they're saying he did, what these records that are lurking in that file for the next 25 years contain.

[00:14:48] Speaker 02:
Any further questions?

[00:14:48] Speaker 02:
Thank you.

[00:14:49] Speaker 03:
Thank you.

[00:14:50] Speaker 03:
So yes, we ask the court to resolve this case and make those findings here.

[00:15:02] Speaker 00:
Good morning, Your Honor.

[00:15:03] Speaker 00:
Gretchen Wolfinger for the Internal Revenue Service.

[00:15:06] Speaker 00:
Judge Griffith, to address your initial question to opposing counsel, the government argued in its brief that the district judge did make a sagro-gability finding, starting at JA Joint Appendix 159 through 162.

[00:15:26] Speaker 00:
It discusses the legal framework for segregability and went on to discuss how those documents were, in fact, not segregable.

[00:15:37] Speaker 02:
I'm sorry, where is that?

[00:15:39] Speaker 00:
Start at JA 159.

[00:15:43] Speaker 02:
Where does he say they're not segregable?

[00:15:45] Speaker 00:
Although factual information, yes, and then on page

[00:15:54] Speaker 00:
J.A.

[00:15:55] Speaker 00:
161, above the heading, the September and December 2013 memorandum falls squarely within the category of factual material protected.

[00:16:05] Speaker 02:
That doesn't say anything about segregation.

[00:16:07] Speaker 00:
From disclosure.

[00:16:09] Speaker 02:
Yes.

[00:16:09] Speaker 00:
The factual accounts contained, he's saying the factual accounts contained in the two memoranda fall squarely within the category of material protected from disclosure under Exemption 5 precedence.

[00:16:22] Speaker 00:
I read that to say, he's saying that the factual material is inexplicably intertwined.

[00:16:27] Speaker 02:
Do you understand we've held specifically that a conclusory statement like that is not good enough?

[00:16:33] Speaker 00:
I don't believe it is conclusory, Your Honor.

[00:16:36] Speaker 02:
He discusses... Does he use the word segregability in there anywhere, in that sentence?

[00:16:43] Speaker 02:
In fact, our opinions all telecise the word expressly with respect to segregability.

[00:16:48] Speaker 02:
Does he use the word segregability anywhere in that sentence?

[00:16:54] Speaker 00:
No, Your Honor, but I think if you look at starting at JA 159, he says, although factual information is often outside the bounds of Exemption 5 protections, the line between fact and agency, opinion, or deliberation is not infallible and must not be applied mechanically.

[00:17:12] Speaker 00:
He's making a segregability analysis using your court's precedents.

[00:17:17] Speaker 02:
That may be how you...

[00:17:19] Speaker 02:
interpret his psychology, but he doesn't use the magic words that we require.

[00:17:25] Speaker 02:
So what's your next argument?

[00:17:30] Speaker 00:
The next argument would go to the Exemption 5 argument about the facts being inextricably intertwined with the deliberative process privilege.

[00:17:41] Speaker 00:
And this court has held that the winnowing of fact is the essence of the deliberative process.

[00:17:46] Speaker 02:
Have we ever held

[00:17:49] Speaker 02:
that that is the case, the selection of facts, where we haven't also said the winnowing occurs from a vast number, a large number, a large universe of facts.

[00:18:04] Speaker 00:
This was a large universe of facts, Your Honor.

[00:18:07] Speaker 02:
Where is a affidavit that says this was a large universe of facts?

[00:18:12] Speaker 00:
I think it's based on the course of proceedings here.

[00:18:17] Speaker 00:
Waterman's representation

[00:18:19] Speaker 00:
occurred over approximately three years, yet what has been winnowed down is only the behavior, the actions, the statements that the IRS believed implicated circular 230.

[00:18:30] Speaker 02:
Is there an affidavit from anyone that says we looked at a large number, there were a large number of things and it was winnowed down to only a few?

[00:18:41] Speaker 00:
a large number of behaviors, a large number of facts?

[00:18:47] Speaker 02:
Well, let's put it this way.

[00:18:48] Speaker 02:
In ancient coin, we explain that in Montrose, the factual material, in Mapother, factual material is assembled through an exercise of judgment and extracting print material from a vast number of documents for the benefit of the official.

[00:19:11] Speaker 02:
And in Montrose, the factual summaries were culled by the committee, quote, from a much larger universe of facts presented to it, citing the Grayfield Declaration.

[00:19:22] Speaker 02:
Is there a declaration in this case?

[00:19:26] Speaker 02:
And Montrose summarized more than 9,200 page record.

[00:19:31] Speaker 02:
Is there a declaration in this case that says anything like that?

[00:19:36] Speaker 00:
know your honor again I I talk about the course of proceeding but I would also say I don't

[00:19:43] Speaker 00:
Although those were the facts in Agent Coyne and MacArthur, I don't think that that's the way Exemption 5 should apply.

[00:19:49] Speaker 00:
It's entirely possible that a person could have committed one act that violated Circular 230, one statement, one action, that would have led to a deliberative process about whether they should or shouldn't, an investigation should or shouldn't be pursued.

[00:20:04] Speaker 02:
It's possible, but we began our line of cases with the proposition that factual statements are not protected.

[00:20:12] Speaker 02:
We made exceptions where there were large numbers of factual statements and selections were made.

[00:20:18] Speaker 02:
If we're now going to take the position that any even small culling of factual statements is protected, then we eliminate our original premise, which is that factual statements are protected.

[00:20:31] Speaker 02:
Now maybe we should do that, but I'm asking you whether we need a new case in order to do that.

[00:20:37] Speaker 02:
Is there any precedent where we've said from a small number

[00:20:41] Speaker 02:
but maybe only one thing when the facts are stated in a memorandum.

[00:20:49] Speaker 00:
I'm not aware of that at this time, Your Honor, but that goes to the essence of the deliberative process privilege.

[00:20:55] Speaker 02:
But it may also go to the essence of the rule that factual statements are not protected.

[00:21:00] Speaker 02:
So we have to balance these two.

[00:21:05] Speaker 00:
I understand that, Your Honor, but then what you're saying is you could conceivably be cutting out

[00:21:11] Speaker 00:
a large number of decisions that are based only on small numbers of facts?

[00:21:17] Speaker 02:
We've never had that.

[00:21:18] Speaker 02:
Apparently there aren't a large number because we have no opinions that say it in the way that you're saying it.

[00:21:23] Speaker 02:
Let me ask you another question with respect to the Kelly memorandum, which reports summarizes a telephone conversation.

[00:21:33] Speaker 02:
Do you have any reason to believe that there's anything in there other than summarizing the telephone conversation?

[00:21:41] Speaker 02:
In other words, if a person speaks to an agent on the telephone and the agent writes down a summary of what the person says, I don't understand how that should put in danger the deliberative privilege.

[00:21:56] Speaker 02:
Certainly the person speaking on the telephone to the agent knows that the agent is going to be writing down what is said.

[00:22:02] Speaker 02:
So the fact that it's later disclosed that the agent wrote down what was said

[00:22:08] Speaker 02:
doesn't, should not make the agent fear writing down what he said.

[00:22:13] Speaker 02:
Everybody expects the agent to write it down.

[00:22:16] Speaker 02:
Why is this not just a statement of facts?

[00:22:20] Speaker 00:
My understanding that this was an internal telephone conversation.

[00:22:26] Speaker 00:
It wasn't.

[00:22:26] Speaker 02:
Summarizing a telephone conversation held on the date with Waterman, with the outsider, not an internal conversation.

[00:22:35] Speaker 00:
I see what you're saying, Your Honor.

[00:22:38] Speaker 00:
But summarizing the facts with the circular 230 issue in mind.

[00:22:45] Speaker 02:
Well, how do we know it's with the circular 230 issue in mind?

[00:22:49] Speaker 02:
This is considerably earlier than that event, isn't it?

[00:22:57] Speaker 02:
Earlier than the OPR recommendation, isn't it?

[00:23:02] Speaker 00:
Earlier than some of the... What's the date of it?

[00:23:06] Speaker 00:
I'll have to check, Your Honor, on a look at the bond index.

[00:23:13] Speaker 02:
I'm looking at the same one.

[00:23:14] Speaker 02:
I don't see a date.

[00:23:16] Speaker 00:
I'm sorry, was the telephone conversation?

[00:23:20] Speaker 02:
Yes, it said JA51.

[00:23:21] Speaker 00:
Oh, JA51.

[00:23:26] Speaker 02:
I don't know.

[00:23:32] Speaker 02:
I can't find a date on it.

[00:23:39] Speaker 02:
Isn't this one of the documents we're talking about?

[00:23:41] Speaker 00:
Yes.

[00:23:42] Speaker 00:
It's December 23, 2013.

[00:23:44] Speaker 00:
So that's later than, for example, the memorandum.

[00:23:48] Speaker 00:
I'm sorry.

[00:23:49] Speaker 02:
That's later than the September letter?

[00:23:51] Speaker 00:
Beneath it, there's a memorandum dated September 10, 2013.

[00:23:55] Speaker 00:
So it's after that.

[00:23:56] Speaker 00:
From Marchetti, Marchetti to Chelsea Kelly.

[00:24:00] Speaker 00:
So it's after that memorandum.

[00:24:03] Speaker 02:
So I don't understand.

[00:24:05] Speaker 02:
So this is after the September letter.

[00:24:10] Speaker 02:
Is that what you're saying?

[00:24:11] Speaker 00:
According to the bond index JA-51, there's a memorandum dated September 10th, 2013 from Mike Marchetti.

[00:24:19] Speaker 02:
Right, but the September letter in which the decision is made, or at least communicated, is 2014, right?

[00:24:26] Speaker 02:
September 10th, 2014.

[00:24:28] Speaker 00:
Yes.

[00:24:28] Speaker 02:
So this is almost a year before.

[00:24:30] Speaker 00:
Yes.

[00:24:30] Speaker 02:
Yeah.

[00:24:32] Speaker 02:
And you're saying that they already knew at that time that there was going to be a problem?

[00:24:39] Speaker 00:
Yes, apparently from this one index, yes.

[00:24:42] Speaker 02:
Apparently from the law?

[00:24:44] Speaker 02:
Yes.

[00:24:46] Speaker 02:
Are you saying that you think there is more in this summary than just the facts of what the person said?

[00:24:55] Speaker 02:
Like they left out some things and they only included the things that would hurt the guy?

[00:24:59] Speaker 02:
Is that what you're saying?

[00:25:02] Speaker 00:
Or it was used as the basis for further action.

[00:25:06] Speaker 00:
Yes.

[00:25:06] Speaker 02:
Well, that may be the case, but the fact that it was used wouldn't be reflected by stating what Mr. Waterman said to them.

[00:25:16] Speaker 02:
It's just a fact statement.

[00:25:18] Speaker 02:
Mr. Waterman made certain statements, which apparently Mr. Waterman knows he made.

[00:25:22] Speaker 00:
Right, and which the agent believes supported a circular 230.

[00:25:26] Speaker 01:
Were there other statements that Mr. Waterman made?

[00:25:28] Speaker 01:
Is this a comprehensive description of interactions?

[00:25:32] Speaker 00:
I do not know.

[00:25:40] Speaker 02:
Are there other questions from the panel?

[00:25:43] Speaker 02:
Thank you.

[00:25:45] Speaker 00:
Thank you, Your Honor.

[00:25:49] Speaker 02:
Is there any time left?

[00:25:51] Speaker 02:
We'll give you one more minute or goodbye.

[00:25:58] Speaker 03:
So if there are no further questions generated by counsel's argument, we just, we ask the court to decide, the extension five issue, decide that these factual accounts are not covered and to the extent there is a remand to remand solely for that segregability finding and to ensure that those factual accounts be disclosed.

[00:26:20] Speaker 02:
All right.

[00:26:20] Speaker 02:
Thank you.

[00:26:20] Speaker 02:
We'll take the matter under submission.

[00:26:26] Speaker 02:
Oh, yeah, yeah.

[00:26:27] Speaker 02:
We want to thank you very much for your service on this.