[00:00:12] Speaker 04:
Okay, the next case is number 17-2235, two consolidated motions, WENO LLC against Uber Technologies, Mr. Erlich.

[00:00:27] Speaker 03:
Good morning, and may I pose the court?

[00:00:29] Speaker 04:
And let's try and stay on the issues of these appeals, the two motions.

[00:00:34] Speaker 03:
Absolutely, Your Honor.

[00:00:35] Speaker 03:
I know Mr. Levitowski's name was mentioned quite a bit, and I completely agree that the crux of

[00:00:41] Speaker 03:
This consolidated appeal is simply whether the common interest privilege applies to a factual and forensic investigation that was conducted and overseen by a litigation counsel representing parties on opposite sides of a transaction who had entered into

[00:01:10] Speaker 03:
Common Interest in Joint Defense Agreement and who jointly commissioned this factual investigation with an explicit aim of assessing litigation exposure and preparing defenses to that litigation that they were jointly anticipating would ensue if the acquisition... If Mr. Lewandowski and Uber share a common interest in making sure the documents aren't produced

[00:01:39] Speaker 02:
Why did they leave it to an interviewer to argue their case?

[00:01:44] Speaker 03:
Your Honor, I don't know that I can answer for them, but I would say this.

[00:01:49] Speaker 03:
My understanding of the Mohawk decision, they did, Uber, as the court I'm sure knows, did make objections to the magistrate judge's findings.

[00:02:02] Speaker 03:
They pursued those completely through the district court.

[00:02:06] Speaker 03:
But under the Mohawk doctrine, if a party

[00:02:09] Speaker 03:
has the opportunity following final judgment to seek a remedy, they are in a position to do that.

[00:02:16] Speaker 03:
But beyond that, I do have to ask them.

[00:02:21] Speaker 03:
The crux of my argument is that the decision below, which holds that there was no common interest privilege that attached to this factual investigation, including the communications between my client, Mr. Lewandowski, and the forensic consultant, Strauss-Freberg,

[00:02:37] Speaker 04:
Well, I think I said there may be a common interest now, but at the time this information was obtained, there was not.

[00:02:44] Speaker 04:
There were opposing interests, or at least... That's correct, Your Honor.

[00:02:50] Speaker 03:
In a subsequent ruling, the magistrate judge, and now affirmed by the District Court, held that at the time that the quick call agreement was signed on April 11th, that she has held

[00:03:03] Speaker 03:
that there is a valid common interest privilege, which it appears attaches to this very same factual investigation, which preceded.

[00:03:12] Speaker 03:
In fact, the straws investigation, the final report, wasn't completed until August, which is months after the court has now found there was a valid common interest privilege.

[00:03:25] Speaker 03:
We think that recent ruling, approved by the district judge, essentially reveals the fundamental legal error

[00:03:33] Speaker 03:
that the courts below made, which is that unless the parties have reached some binding obligation to either proceed with the transaction or indemnify the counterparty, parties negotiating a commercial transaction simply cannot have a sufficient commonality of interest to support a common interest privilege.

[00:04:00] Speaker 03:
In other words,

[00:04:01] Speaker 03:
Until the deal is sealed, the parties cannot set their lawyers to the task of, in a privileged fashion, exploring the facts, assessing litigation exposure, and assessing what are viable defenses to this litigation.

[00:04:21] Speaker 05:
Waymo's response to what you're saying right now is that the report was commissioned well before the footcall agreement was signed.

[00:04:29] Speaker 05:
And that at that time, there was no common interest.

[00:04:32] Speaker 05:
In fact, that's what the court found.

[00:04:34] Speaker 05:
So that there might have been a common interest agreement after the Pocall agreement was signed, it doesn't seem to relate back, in my view.

[00:04:44] Speaker 03:
Well, I understand that argument.

[00:04:47] Speaker 03:
And I think it's fundamentally a non-sec order.

[00:04:50] Speaker 03:
And here's why.

[00:04:51] Speaker 03:
The fact that parties who share a common legal interest

[00:04:58] Speaker 03:
might, as they're negotiating a transaction, call for a privileged investigation to explore the nature of that potential litigation they would face, does not thereby render that investigation non-privileged.

[00:05:16] Speaker 05:
It is true when the term sheet- They had different interests at the time, is what the district court said, right?

[00:05:22] Speaker 05:
Said that one party was interested in providing a lot of information and one party was interested in

[00:05:28] Speaker 05:
keeping that to himself.

[00:05:31] Speaker 05:
At least that's how the district heard.

[00:05:32] Speaker 03:
I think that's an unrealistic reading of the position of the parties at the time that the straws investigation commenced.

[00:05:43] Speaker 03:
As the court knows, there was a term under discussion that was called for indemnification.

[00:05:52] Speaker 03:
And the parties' interests were certainly, in some respects,

[00:05:57] Speaker 03:
adverse, and the case law is clear that that doesn't defeat the possibility of a common interest privilege.

[00:06:04] Speaker 03:
But in connection with the straws investigation, my client had every incentive to disclose everything, warts and all, because that factual record that was being created, both to assess the risk and the litigation defenses, but it was also contemplated that it would set the record

[00:06:27] Speaker 03:
for what the scope of indemnification would be.

[00:06:30] Speaker 03:
Also, the fact that these are very technical issues, and that's why Strauss Friedberg was hired, an expert forensic accountant, to evaluate the record and help the lawyers, as the Upjohn case says, step one is to evaluate, sift through the facts, and decide what is legally relevant.

[00:06:50] Speaker 03:
This record was something that could inform Mr. Lewandowski

[00:06:57] Speaker 03:
as well as Uber, that this deal was too risky to go forward.

[00:07:01] Speaker 05:
Let me ask you another question, which is the district court also said that the common interest doctrine itself didn't create a privilege.

[00:07:09] Speaker 05:
It just protected it.

[00:07:10] Speaker 05:
And so where does the privilege originate from when Strauss was an attorney of Mr. Lewandowski's?

[00:07:17] Speaker 05:
Mr. Lewandowski wasn't interviewed for the purpose of seeking legal advice.

[00:07:24] Speaker 05:
And so the district court said there was no privilege to begin with.

[00:07:27] Speaker 03:
Yes, so we think that was also legal error to hold that there must be some pre-existing privilege that only then is later shared in the common interest group.

[00:07:40] Speaker 03:
The cases we've cited, the Gonzalez case, which is a leading case in the Ninth Circuit, the Schwimmer case from the Second Circuit, the Austin case in the Ninth Circuit, which relies on Schwimmer, and the Henke case in the Ninth Circuit all make clear

[00:07:55] Speaker 03:
that in a common interest agreement, if it is a valid one, establishes an inherent attorney-client privilege relationship between each of the parties and the lawyers for the parties.

[00:08:10] Speaker 03:
And therefore, in Schwimmer, the court held that one defendant talking to an expert hired by another defendant, that was privileged.

[00:08:22] Speaker 03:
And even Gonzalez makes clear

[00:08:24] Speaker 03:
that there's no need for your own attorney to be sitting next to you when you're talking to counsel or agent for counsel of another attorney.

[00:08:33] Speaker 03:
So long as there is a valid common interest privilege between and among the parties, those communications are allowed and encouraged.

[00:08:43] Speaker 03:
And so long as they're maintained as confidential and not waived, they are privileged.

[00:08:49] Speaker 02:
Let's talk a little bit about jurisdiction.

[00:08:53] Speaker 02:
Do you contend that the district court's orders were final decisions?

[00:09:01] Speaker ?:
That orders being challenged here?

[00:09:05] Speaker 03:
Mm-hmm.

[00:09:05] Speaker 03:
Under the doctrine, as I understand it, I don't think they are final decisions.

[00:09:11] Speaker 02:
OK.

[00:09:11] Speaker 02:
So then we have jurisdiction over certain interlocutory orders.

[00:09:23] Speaker 02:
Did the district court certify these orders for appeal?

[00:09:25] Speaker 02:
No.

[00:09:30] Speaker 02:
What's our basis for jurisdiction?

[00:09:32] Speaker 02:
They're not admiralty cases.

[00:09:34] Speaker 02:
They're not injunction cases or receivership.

[00:09:39] Speaker 03:
Well, certainly a basis for appeal is mandamus.

[00:09:43] Speaker 03:
And as to one of the decisions, the one where the motion was directed at the party, we can see that our only

[00:09:53] Speaker 03:
As to the order... Was Strauss hired?

[00:10:01] Speaker 02:
He's not an attorney, he's an accountant.

[00:10:04] Speaker 03:
Strauss Freeburg is a very large forensic and investigative firm.

[00:10:09] Speaker 02:
It has many, many different specialties.

[00:10:13] Speaker 02:
Was it hired by Lewandowski or his attorney?

[00:10:19] Speaker 03:
He was not engaged specifically by

[00:10:22] Speaker 03:
Mr. Lewandowski's attorney.

[00:10:24] Speaker 03:
However, I do think that is another red herring as a factual matter.

[00:10:29] Speaker 03:
He was engaged just as in Schwimmer by counsel for other parties to the joint defense agreement.

[00:10:37] Speaker 03:
The fact of who engages the particular consultant has really no significance as to whether or not those communications are thereby privileged.

[00:10:47] Speaker 02:
You don't believe that the common interest doctrine is a standalone form of privilege, right?

[00:10:51] Speaker 03:
I believe that is, under controlling Ninth Circuit precedent, recognized to be a, and I think under this Court's, holding an in-rate regents of University of California as well, it is a variant and an extension of the attorney client privilege.

[00:11:12] Speaker 03:
It does not require- You're not saying just, I thought you were saying it was an exception to the waiver rule.

[00:11:19] Speaker 03:
It is an exception to the waiver rule, but it needs to be understood in a more nuanced way.

[00:11:25] Speaker 03:
Typically, if I am meeting with my counsel and there is somebody present who's not a lawyer, that's a waiver.

[00:11:32] Speaker 03:
So this communication would not be privileged.

[00:11:35] Speaker 03:
What I'm saying is there's no requirement that there first be a document or a communication that's privileged and then only later shared with a common interest group.

[00:11:49] Speaker 03:
And the attorney-client privilege, it is a non-waiver doctrine, but it allows for this extension of the privilege among the common interest group.

[00:12:02] Speaker 03:
Briefly put, the two fundamental legal errors in this case, which were that there needs to first be a binding obligation before there can arise a valid commonality of interest to support the privilege,

[00:12:17] Speaker 03:
is completely inconsistent with subtle precedent, including this court's decision in NRA, Regents of California, and many others that we cite in our brief.

[00:12:27] Speaker 03:
The second legal error was the court's conclusion that simply because this communication to Strauss-Freiburg had, in addition to a litigation purpose, had a business purpose.

[00:12:45] Speaker 03:
We don't dispute that.

[00:12:46] Speaker 03:
that the mere presence of a business purpose eviscerates the protections of the common interest privilege.

[00:12:56] Speaker 03:
This is very clear that this was the dispositive fact that the entire weight in this opinion was placed on the fact in the alternative holding that this investigation was called for under the term sheet.

[00:13:12] Speaker 05:
What about the court's finding

[00:13:16] Speaker 05:
that the Strauss report, the magistrate judge's conclusion after reviewing it in camera, that the purpose of the report was due diligence.

[00:13:27] Speaker 05:
It wasn't for these other purposes that you're saying.

[00:13:31] Speaker 03:
I know the reference and the opinion.

[00:13:34] Speaker 03:
I have certainly read the report myself.

[00:13:37] Speaker 03:
I don't read that as her finding.

[00:13:42] Speaker 03:
in a way that she's placing great reliance on.

[00:13:48] Speaker 03:
I think the problem here is that a report that does a good job of assessing litigation risk and laying the factual framework for lawyers to provide legal advice looks very similar to a report that would be done purely for business reasons.

[00:14:08] Speaker 03:
But in this case,

[00:14:09] Speaker 03:
It is uncontroverted.

[00:14:11] Speaker 03:
There are six declarations that say without contradiction that the parties here already had a common interest agreement in place and that they explicitly engaged Strauss-Freberg and guided the focus of their investigation.

[00:14:27] Speaker 02:
The court found that the weight of the evidence did not support the validity of those declarations.

[00:14:34] Speaker 03:
I think the court did say that and found that they were not credible.

[00:14:39] Speaker 03:
but based on a red herring because, in part, because they didn't focus on the fact that there was also another business purpose.

[00:14:49] Speaker 03:
But that goes to the heart of the error.

[00:14:51] Speaker 03:
The fact that there is another overlapping business purpose under governing law does not mean that the common interest privilege evaporates.

[00:14:59] Speaker 03:
There's very well-settled doctrine about dual purpose communications.

[00:15:04] Speaker 03:
And in the Ninth Circuit, the Ninth Circuit applies

[00:15:07] Speaker 03:
of a variety of tests, whether it be solely commercial because of litigation or primary purpose, the fundamental and fatal error in the court's factual finding is that she undertook no effort to weigh the relative significance of the commercial or litigation purposes.

[00:15:32] Speaker 03:
It was simply asking the wrong question, which is, is there a business purpose?

[00:15:37] Speaker 03:
and solving.

[00:15:40] Speaker 04:
Let's move to the other side, and we'll save everybody time.

[00:15:49] Speaker 01:
Thank you very much.

[00:15:49] Speaker 04:
Good morning, Mr. Hovind.

[00:15:50] Speaker 04:
Mr. Hovind.

[00:15:54] Speaker 01:
This appeal, first of all, the only way it can be heard by this court is a mandamus, which requires a finding of clear error

[00:16:05] Speaker 01:
and also a finding of no adequate remedy on appeal.

[00:16:09] Speaker 01:
And neither of those elements can be met in this case.

[00:16:14] Speaker 01:
Virtually all the arguments in the briefing, at least, are disagreements with the fact finding of the district court.

[00:16:22] Speaker 01:
And there's no way that those fact findings are clearly erroneous under the standard that this court has to use.

[00:16:30] Speaker 01:
In fact, Judge Strode,

[00:16:33] Speaker 02:
Well, if the court was in the air on appeal, the appellate panel can order a new trial without the admission of that report.

[00:16:46] Speaker 02:
Is that not correct?

[00:16:47] Speaker 01:
That's correct.

[00:16:48] Speaker 01:
That goes to the second element.

[00:16:51] Speaker 01:
And on the second element, just look at the two appeals.

[00:16:58] Speaker 01:
The same arguments are being made by the defendants

[00:17:03] Speaker 01:
for which there's no appellate jurisdiction right now, because it's non-final.

[00:17:07] Speaker 01:
And you heard counsel explain that the rational reason they're not taking the appeal right now is because the way it's non-final, and you do it the normal way, and you take an appeal with the appellate courts.

[00:17:19] Speaker 01:
And the Supreme Court in the United States has said that post-judgment appeals are sufficient on rulings concerning attorney-client privilege.

[00:17:30] Speaker 01:
Right there, they don't satisfy the second prong of mandamus.

[00:17:35] Speaker 01:
But on the findings of fact, which is most of what this appeal is about, disagreements on the findings of fact, I think it's notable.

[00:17:44] Speaker 01:
I think Judge Stoll asked this question about the in-camera submission of the diligence report, which is the subject of the motion to compel.

[00:17:53] Speaker 01:
The district court had that diligence report in camera, and the district court

[00:18:00] Speaker 01:
referenced that and relied upon that in making the district court's factual findings.

[00:18:06] Speaker 01:
But this diligence report, the entire subject of these motions, is not in the record on appeal.

[00:18:13] Speaker 01:
The appellant didn't even bother to present that to this court in camera so that the court could even look at one of the main bases that the district court used in order to make the district court's findings a fact.

[00:18:29] Speaker 01:
So this court can't even review it under this record, because the record is totally incomplete as to major the subject of the appeal.

[00:18:40] Speaker 05:
Can I ask you for a minute about the argument about the district court erred by not providing de novo review of the magistrate judges ruling on the constitutional issue?

[00:18:58] Speaker 05:
How do you respond to that?

[00:19:00] Speaker 05:
And if I look at the opinion, and it doesn't necessarily read as if it's a J.A.

[00:19:10] Speaker 05:
19, it doesn't read as if it's, you know, a review.

[00:19:14] Speaker 01:
Yes, Your Honor.

[00:19:17] Speaker 01:
So, first of all, Lewandowski below, it should be noted, by the way, that Lewandowski was granted intervention below.

[00:19:27] Speaker 01:
And so even Lewandowski could probably appeal.

[00:19:30] Speaker 01:
It wouldn't be a straight-on appeal, but most likely, Lewandowski would be granted an appeal here as to the issue of adequate remedy after close judgment.

[00:19:41] Speaker 01:
But on de novo review, Lewandowski argued below only for this argument under Fisher versus the United States.

[00:19:49] Speaker 01:
But the Fisher argument applies only to the extent that he prevails in establishing his attorney client

[00:19:55] Speaker 01:
in common law interest privileges in the first instance.

[00:19:59] Speaker 01:
So the district court held that those privileges do not apply here.

[00:20:03] Speaker 01:
And Lewandowski presents no rationale for applying de novo review of those rulings on those privileges.

[00:20:11] Speaker 01:
So the argument is premised on a finding by the district court as to attorney-client privilege.

[00:20:19] Speaker 01:
And they're not entitled to de novo review on the attorney-client privilege.

[00:20:25] Speaker 01:
There's no attorney-client privilege that fishers inapplicable.

[00:20:28] Speaker 01:
And so that's our response.

[00:20:32] Speaker 01:
Going to the common interest doctrine specifically, the district court provided three reasons for why it doesn't apply.

[00:20:43] Speaker 01:
The first, and this appears to be the legal argument that they're making, is that there was no attorney-client privilege in the first place.

[00:20:54] Speaker 01:
So if there's no privilege in the first place, the common interest doctrine doesn't apply.

[00:20:58] Speaker 01:
The common interest doctrine is an exception to the waiver rule.

[00:21:03] Speaker 04:
It's an alternative argument.

[00:21:07] Speaker 04:
It's an alternative argument.

[00:21:08] Speaker 04:
So rather than whether it depends on the attorney-client privilege, is that so?

[00:21:15] Speaker 01:
The law is that if you have the privilege to communicate, even if you have a unity of interest, if you're not

[00:21:20] Speaker 01:
exchanging attorney-client privilege communications, or if you're not disclosing a privilege conversation to the other, then the doctrine doesn't even come into place, because the doctrine concerns a waiver of the attorney-client privilege and the exception to that waiver.

[00:21:40] Speaker 01:
So under the law, if you're not dealing with communications that are attorney-client privileged,

[00:21:47] Speaker 01:
common interest exception to the waiver of attorney-client interest simply is inapplicable.

[00:21:55] Speaker 01:
And that's what the law says.

[00:21:57] Speaker 01:
And the district court found that there was no attorney-client privilege.

[00:22:03] Speaker 01:
And the challenge to that is not based on the law of attorney-client privilege.

[00:22:07] Speaker 01:
It's based on the court's fact finding.

[00:22:12] Speaker 01:
And the court found that the facts did not meet the standard for attorney-client privilege.

[00:22:18] Speaker 01:
That the communications for the diligence report were not for the purpose of obtaining legal advice.

[00:22:24] Speaker 01:
That Mr. Lewandowski was providing factual information to an investigator hired by the defendants in an arrangement that was the result of which would determine

[00:22:42] Speaker 01:
where the defendants moved forward.

[00:22:45] Speaker 01:
And beyond that Stroh's report, there was no obligation to either party to proceed further.

[00:22:51] Speaker 01:
In fact, the term sheet that provided for the diligence report and the inspection expressly provided that it provided no obligations on either party.

[00:23:09] Speaker 01:
I'm digressing now to the unity of interest issue.

[00:23:13] Speaker 01:
They're overlapping.

[00:23:14] Speaker 01:
But the communications were not in confidence for the purpose of obtaining legal advice.

[00:23:20] Speaker 01:
Those are the factual findings.

[00:23:22] Speaker 01:
And there's no clear error in those factual findings.

[00:23:26] Speaker 01:
So that in itself, the fact that there's no attorney-client privilege, is dispositive.

[00:23:32] Speaker 01:
Common interest doctrine doesn't apply if there's no attorney-client privilege.

[00:23:36] Speaker 01:
So that's what the court found as its first basis.

[00:23:40] Speaker 01:
And there's no error there.

[00:23:42] Speaker 01:
Even beyond that, the court found that there was no common interest.

[00:23:47] Speaker 04:
And the reason the court did that... But they have argued, in their brief error, as far as privilege is concerned, it's not being presented, wasn't presented in the argument in chief here, so reliance on the common interest.

[00:24:01] Speaker 04:
But I didn't see any waiver to call it that, of asserting privilege.

[00:24:10] Speaker 01:
The court found that there was no common interest.

[00:24:13] Speaker 04:
Yes, that was what the court found.

[00:24:14] Speaker 01:
Yes.

[00:24:15] Speaker 04:
And that's before us.

[00:24:18] Speaker 01:
I agree.

[00:24:20] Speaker 01:
But first, the challenge that they're making is to the fact findings of the district court.

[00:24:26] Speaker 01:
Again, this court will review that only for clear error.

[00:24:31] Speaker 01:
And in this case, the fact findings are not erroneous under any standard.

[00:24:36] Speaker 01:
The facts show the court found that

[00:24:41] Speaker 01:
Before any acquisition, before any obligations, the defendants retained this third party, Stroh's, who basically became their agent.

[00:24:53] Speaker 01:
And in Otto, which was the company in which Mr. LeBron Gaskin worked, agreed with Uber to engage in a process where a, this is the words in the term sheet,

[00:25:09] Speaker 01:
independent third party was to conduct a factual investigation and bring forth the results to look into a number of things.

[00:25:20] Speaker 01:
One of which was whether there were any previous bad acts by Mr. Lewandowski.

[00:25:26] Speaker 01:
And the arrangement was Mr. Lewandowski was supposed to supply them things that would not be in his interest to disclose.

[00:25:39] Speaker 01:
He had to supply them honestly with all bad acts that he'd engaged in.

[00:25:46] Speaker 01:
And so Mr. Lewandowski, at that period of time, was facing a decision that was not in the same interest as Uber.

[00:25:57] Speaker 01:
His decision was, I can tell the truth, but that really exposes me to liability if it gets out.

[00:26:05] Speaker 01:
So he doesn't want to really do that.

[00:26:08] Speaker 01:
That's certainly not the same interest as Uber.

[00:26:12] Speaker 01:
Uber wants to know that information.

[00:26:15] Speaker 01:
Lewandowski doesn't want to disclose it, but he has to balance that against possibly making millions and millions of dollars if the transaction goes through.

[00:26:26] Speaker 01:
And so his interests are, I really want to make this transaction go through, because I'll make a bunch of money.

[00:26:33] Speaker 01:
But if I do that, I really risk there's a risk

[00:26:36] Speaker 01:
that I might be found liable for misappropriating trade secret information under this bad acts clause.

[00:26:44] Speaker 01:
And so there were clearly different interests involved in the discussion around the diligence report.

[00:26:52] Speaker 01:
And the court also found that there were no obligations as of the time that the report was commissioned.

[00:27:01] Speaker 01:
And the reason for that is the term sheet, which expressly says there's

[00:27:06] Speaker 01:
that this term sheet does not obligate any other parties except for a couple of provisions that are totally irrelevant to this appeal.

[00:27:15] Speaker 01:
So you see the cases cited in the brief regarding acquisitions and transactions.

[00:27:22] Speaker 01:
And there's different shades based on the different facts among those decisions.

[00:27:28] Speaker 01:
But our facts are very clear.

[00:27:31] Speaker 01:
They're varied on one side, because there weren't some obligations.

[00:27:35] Speaker 01:
There were no obligations.

[00:27:37] Speaker 01:
And it wasn't like a contract had been signed or agreed in principle.

[00:27:43] Speaker 01:
They're finalizing the terms.

[00:27:45] Speaker 01:
There was no contract.

[00:27:47] Speaker 01:
What the facts show is the decision to enter into a contract in the future, which turned out to be April 11, was expressly conditioned upon getting the results of the diligence report.

[00:28:02] Speaker 01:
Uber expressly said, I'm not going to move forward until I get a chance to review

[00:28:07] Speaker 01:
the results of the diligence report.

[00:28:09] Speaker 01:
And that was all commissioned before the magistrate judge found on April 11th, when the actual term put call agreement was signed, that there was a common interest.

[00:28:21] Speaker 01:
And notably, and I think this is in the correspondence as well, the Uber obtained an oral report of the findings that Stroh's had before they signed

[00:28:36] Speaker 01:
The put-call agreement.

[00:28:39] Speaker 01:
The final report didn't issue until afterwards, but they received the results as to these bad acts before they signed the put-call agreement.

[00:28:54] Speaker 04:
But even so, those results have legal implications.

[00:28:58] Speaker 04:
That's what the whole idea of obtaining the Stroh's report

[00:29:04] Speaker 04:
was aimed at?

[00:29:06] Speaker 04:
Was it not the legal consequences of what may or may not have transpired?

[00:29:11] Speaker 01:
Absolutely, Your Honor.

[00:29:12] Speaker 04:
So why isn't that privileged?

[00:29:14] Speaker 01:
Because the legal results might hurt Lewandowski.

[00:29:20] Speaker 01:
Lewandowski had a conflict in his own interests because he wanted to go through and make a lot of money on this transaction, but they were asking him to disclose his prior bad acts.

[00:29:33] Speaker 01:
And so he didn't want to do that, but they did want him to do that.

[00:29:37] Speaker 01:
And that's what they're requiring him to do if he were to move forward with this proposed transaction.

[00:29:46] Speaker 01:
And it wasn't until the PUT call and the Common Interest Agreement, there's a written Common Interest Agreement, were not signed until April 11 after they received the results from STROS of its investigation.

[00:30:02] Speaker 01:
And before that time, neither party was obligated to do anything except preserve some confidentiality and whatnot.

[00:30:10] Speaker 01:
But in terms of an agreement to move forward with the transaction, there was absolutely no obligation.

[00:30:19] Speaker 01:
I suppose I should address briefly in my 28 seconds the work product doctrine.

[00:30:26] Speaker 01:
And here as well, the challenge to the work product doctrine is a challenge to the fact findings.

[00:30:32] Speaker 01:
of the district court.

[00:30:33] Speaker 01:
The standard is not disputed.

[00:30:37] Speaker 01:
There's a waiver of a work product doctrine if you're, well, the law is potential adversaries.

[00:30:44] Speaker 01:
And there's no dispute about that being the law.

[00:30:49] Speaker 01:
But what the dispute is on this appeal is the fact findings of the district court finding that Otto and Mr. Lewandowski were actual adversaries at the time in which

[00:31:01] Speaker 01:
the term sheet was commissioned to the diligence of the court.

[00:31:06] Speaker 01:
And again, the challenge to that, the standard of review is clear error.

[00:31:12] Speaker 01:
And in this case, the facts simply do not support the court finding that it was clear error.

[00:31:18] Speaker 01:
Thank you, Your Honor.

[00:31:19] Speaker 04:
Thank you, Mr. Brehoban.

[00:31:21] Speaker 04:
Sarah?

[00:31:24] Speaker 04:
Is it correct that you're relying only on the common interest doctrine, not work product or the other issues?

[00:31:31] Speaker 03:
No, no, we've briefed that in our briefs.

[00:31:35] Speaker 04:
Yes, they are in the briefs, but I thought we started out, I wanted to be sure that we were clear.

[00:31:42] Speaker 03:
We abandoned those arguments.

[00:31:44] Speaker 02:
So you might abandon the Fifth Amendment argument?

[00:31:46] Speaker 03:
No, and I will address that in my brief time because I think it's relevant to a point that Mr. Verhoeven just made.

[00:31:54] Speaker 03:
But let me first say, I think listening to Mr. Verhoeven,

[00:31:59] Speaker 03:
talk about the inherent adversity, how Mr. Lewandowski didn't want to reveal much and the other side wanted him to reveal everything.

[00:32:07] Speaker 03:
This proves too much because there are legions of cases in which commercial parties, one has to disclose to the other what's the litigation that they're facing or what's the exposure.

[00:32:19] Speaker 03:
You could say the same thing.

[00:32:21] Speaker 03:
That entity would like to disclose as little as possible.

[00:32:25] Speaker 03:
The other side would like to know as much as possible.

[00:32:27] Speaker 03:
And yet it is entirely uncontroversial that the common interest privilege can attach, because it promotes the underlying social good of encouraging full and frank disclosure about potential legal risks and compliance with the law, even when there is partial adversity between parties.

[00:32:50] Speaker 02:
Why isn't that report in the record under seal?

[00:32:54] Speaker 03:
Your Honor.

[00:32:55] Speaker 03:
My understanding, this is the first time I've been in the federal court of appeals, a federal circuit.

[00:33:03] Speaker 03:
My understanding is that record is available.

[00:33:06] Speaker 03:
It was submitted in camera to the court.

[00:33:08] Speaker 03:
It's available to the court.

[00:33:10] Speaker 03:
Of course.

[00:33:12] Speaker 03:
We did not make it part of the record because I didn't think it was possible to make an in-camera submission part of the record.

[00:33:20] Speaker 03:
It was not, but I was assured

[00:33:23] Speaker 03:
when I asked my colleagues and others that it was part of the record and certainly would be available to the court for its review.

[00:33:29] Speaker 03:
I would encourage the court to review it.

[00:33:32] Speaker 03:
Turning to the Fifth Amendment argument, the problem with saying that, well, why don't you just wait till the case is over, Mr. Lewandowski, and perhaps you can seek an appeal is because of the Fifth Amendment and the argument we made under Fisher versus United States.

[00:33:49] Speaker 03:
It is correct.

[00:33:50] Speaker 03:
If this is a valid common interest privilege,

[00:33:53] Speaker 03:
which we, of course, assert it was, then a client giving an attorney documents, devices, as part of a privileged relationship, that, as to the straw subpoena, they are the agent of counsel for the common interest group.

[00:34:14] Speaker 03:
Under the Fifth Amendment, a client has a right to, if they're asserting their Fifth Amendment, to block production

[00:34:22] Speaker 03:
of those records from their counsel or the agent of their counsel.

[00:34:28] Speaker 03:
That's what Fisher versus United States stands for.

[00:34:32] Speaker 03:
It turns on the validity of the privilege.

[00:34:34] Speaker 03:
If we believe that the privilege is valid but was told to wait, then the documents and information will be disclosed.

[00:34:43] Speaker 03:
If it's later determined that that was a violation of the privilege, it will also be determined that that was a Fifth Amendment violation

[00:34:50] Speaker 03:
And as we've said repeatedly, castigar protections will apply for meaning.

[00:34:55] Speaker 03:
And I believe the court knows that Judge Alsop has referred the matter for criminal prosecution.

[00:35:02] Speaker 03:
And if there is a violation of the attorney client privilege here that leads to a determination that the Fifth Amendment violation occurred, this will inevitably taint the record.

[00:35:15] Speaker 03:
And it raises cast of our issues that we are advising the court are necessary to avoid.

[00:35:22] Speaker 03:
So that's why we can't simply wait to appeal later.

[00:35:27] Speaker 05:
Can I ask you, I had asked your adversary about the district court's review of the magistrate's decision on the Fifth Amendment.

[00:35:39] Speaker 05:
And the response, as I understand it, is that

[00:35:42] Speaker 05:
that your argument is based on Fisher, which is based on the attorney-client privilege.

[00:35:46] Speaker 05:
And because the magistrate judge can decide the attorney-client privilege, there's no problem here with respect to the district court delegation of the Fifth Amendment issue to the magistrate judge.

[00:35:58] Speaker 05:
What's your response to that?

[00:36:00] Speaker 03:
Well, the standard review argument comes from the Rivera-Garrero case.

[00:36:05] Speaker 03:
And it's not entirely clear.

[00:36:06] Speaker 03:
We agree that the threshold issue is the attorney-client privilege.

[00:36:12] Speaker 03:
But what Fisher doesn't make crystal clear is whether the right at issue when a client has given records to the attorney is simply a matter of attorney-client privilege or a matter of the Fifth Amendment.

[00:36:27] Speaker 03:
And so there's a case in the Ninth Circuit called Sideman and Bancroft, which follows Fisher, which

[00:36:37] Speaker 03:
addresses the issue more in the terms of a pure Fifth Amendment issue, that the attorney stands in the shoes of the client when records are sought to be compelled from that attorney.

[00:36:51] Speaker 03:
So I think they have a fair point that is a little bit murky, the extent to which de novo review should occur.

[00:37:01] Speaker 03:
I don't think the cases are clear on that.

[00:37:02] Speaker 03:
But given the significance of the underlying constitutional right, we did ask the court

[00:37:08] Speaker 03:
to engage in that inquiry de novo.

[00:37:14] Speaker 04:
And we think that would have been appropriate.