We will hear Council and Bull versus UPS. Good morning, Your Honours. My name is David Zatochny of the Law Funds of Tuchin Associates. On behalf of the plaintiff and appellant, Lorraine Bull, if you please the court are I would like to request a three reserve of three minutes for rebuttal. That's granted. Okay. Thank you. Were you counsel in the district court? I was, yeah. I was just reading the transfer. Yes. Ms. Bull had her case dismissed by the trial court for a purported discovery violation. What do you mean purported? She didn't show the, didn't produce the documents. There was no, we did produce two separate sets. You didn't produce the original document. That's right, which were never requested during discovery at any time. Mr. Zatochny, is it helpful at all for our purposes to divide our consideration of what occurred here between the time from the original controversy which was handled by the union up through discovery in the law suits. Two about the time of trial and then a separate period of time during trial because it seems to me that what you have argued and that the argument may have some real force to it is that what occurred here was not really a discovery violation and shouldn't be analyzed as a discovery violation. But that what we do have here is at least, and I know you don't agree that there was. Excuse me. Something's buzzing. The video? The video? Anyway, that the other side would say that what occurred here was actually some wrongdoing with respect to what was required to be produced for trial purposes that would not be covered by the discovery rules. Is that a useful way for us to at least analyze the two sides' contentions here? I think it is useful, Your Honor
. And I guess the first point is to address the reason why the district court dismiss missples claim. The district court's motivation was based on its belief that there was some type of discovery violation. And I quote, you know, both at trial and then even once post trial, it was made clear to the court that there was no discovery request, no reference, no mention of seeking the original notes at any time. The court still rely on a purport of discovery violation to dismiss missples claim. Assuming for purposes of argument that that's correct, at least that the court assumed a discovery violation. It's also true that what occurred in front of the district court right in front of it was a controversy between you and your client. Yes, that's the fact that she never produced these for you. That's right, Your Honor. And this unfolds right in front of the district court while he's got a jury trial. That's correct, Your Honor. And it was very unfortunate. And what happened at trial, I can, it's not my place to excuse the trial court in any way, but at least from my standpoint understandable. My understanding for my client is that these originals were not lost. She gave me a lot of original documents. They were all sitting in my car. And you had a trial, Subinna, that directed her to produce the originals. Well, the trial subpoena itself was a legal nullity. I understand, but you didn't raise that by way of a motion to quash the subpoena, did you? No, but you didn't raise that at any time with the court even informally, did you? No, the trial... Did you have some obligation to do that to avoid delay and the kind of controversy that occurred here? I don't believe so, Your Honor, because for me to be able to, for me to make a motion to quash a subpoena, the subpoena has to be valid in the first place. At least served a trial. In this case, there was a trial subpoena that was simply emailed
... Let me... Let me again even assume for argument purposes that is correct. What did you think was going to happen at trial if you didn't raise that? Surprise, we don't have the documents and all of a sudden we've got a declarative continuance, so you can find the documents. I don't know of any district judge that would appreciate you having sat back, waited thinking the subpoena is technically incorrect and then springing it on everyone in the midst of trial. Well, Judge, I guess the thing is, if I knew that the originals were still somewhere in existence, irrespective of my feeling about the tross of the puna, I still would have had them at court. But you're responsible for your client's failure to produce them. You may have asked her to do so, but you have to... you stand in her shoes. That's correct. Produced them to me, I guess, is the issue. So the very worst thing that can be said about my client is that she did not provide these originals... She didn't look for them. That's what really got the trial judge upset. She admitted that she didn't look for them. I understand that we've got the trial judge
. No, no, but that's the fact. But the point still remains that given that, was a dismissal as a sanction for prejudice to defendants in this case appropriate. That's a completely different issue. But I understand if you want to move to that, then you're shifting to assuming that there was wrongdoing what's an appropriate remedy. But again, just to be clear what the wrongdoing was. The wrongdoing to the extent there was wrongdoing was... No, there was wrongdoing. I think we have to accept the fact that the originals were in produce. Fine, let's accept that the originals were not produced. Again, what is the effect on the litigation here? The originals were not something that the defendants were ever interested in during the litigation. Well, the defendants' councils to the trial court that they were were simply mistaken. And the trial court relied on those mistaken statements to believe that these originals were... repeatedly, often, properly, validly, and I'm using the trial court's own words, requested during discovery in this litigation, which was simply not the case. Very interestingly, and I will want to hear from UPS Council on this, since you had shifted to a discussion of remedy. The defense didn't want to mistrial during the course of this trial. It is eminently clear from the transcript that they were trying to back the judge who were walk the judge away from a precipitous mistrial. But after it was declared, they had no choice but to take the position that they took. And I guess another issue that I have with the trial court, and I understand the trial court's.
.. ...dismet over me telling the trial court that I think that my understanding is that these notes are no longer existing, that they were destroyed during flooding, and then my client saying something differently in response to a question. I understand that. And it's not until after trial that the originals actually come to the fore. But the trial judge... I'm asking, isn't that... That is correct. ...that is correct. But she finally looked for them. She finally looked for them very carefully and found them in... Well, one of them was in a box in her sister's garage
. Doesn't matter where they were, they were within her control, and she found them and hadn't produced them even to you. That's true. But my point still remains that even right then as we were standing there in front of the trial judge, I believe the judge acted very precipitously out of misplaced anger. And he didn't even give me the chance... I mean, the jury was still sitting there, and all I asked, I said, can we just try to talk to my client outside of the presence of the jury and see what's going on? And the judge was having none of that. Assume there was no discovery violation, but that there was in the view of the district court properly some trial related misconduct in not producing these originals pursuant to the subpoena. And that we were to determine that through his authority, inherent authority, he had the power to impose sanctions for that, as opposed to a discovery violation. The mistrial and dismissal in your view is the death penalty, so and was excessive. What is an appropriate sanction here then? Your Honor, I think the most... I think the sanction should have been, or the sanction should be now if your court wants to impose one, is that we can't use the originals at trial. That's the sanction because there's no other prejudice to the defendant. Remember, again, and this is a critical point, the judge precipitously mistried the case, not though. All right, this is important. If the judge... If the judge..
. If Mr. Bissinger or I, with any clarity, could get to tell the judge at that point in time, judge. I'm sorry that I don't have these here. I'm sorry that she didn't look for these, but these were never requested by the defendant during discovery. The subpoena didn't request them. During discovery. The subpoena didn't request them. The subpoena did request them. All right, but again, but just laying that aside for a second. Why do you write that aside? The point is the subpoena requested them, and they were introduced. Yes, but my point, Your Honor, is that the trial judge wasn't relying on the trial subpoena at all when he mistried the case. He thought, all right, that he had to mistry the case because they wanted to conduct a forensic analysis of these original notes. Of course, we can affirm a district court for about any reason, even if it's not for the reason that the district court ruled. So I'm not sure that that's a particularly powerful argument. And what's our standard of review of the district court's dismissal? Your senator reviews abuse of discretion. Okay. I think the point still needs to be made, Your Honor, that this is essential for them to make. If the judge, if Judge Cavendale at that moment in time knew that there was no discovery violation, and that they would never have requested these documents during discovery, his entire analysis, all right, would have been different. His analysis then would be, well, you know, how are you prejudiced then by these notes? I'm not being here today given that you've only asked for them for the first time in a trial subpoena five days ago that you emailed to counsel. What then is the prejudice to you defended? You're not going through three days of a trial is not prejudiced. Well, what would be the prejudice of using the copies that we submitted and we're trying to, that's the issue, right? So their whole argument was that, that they needed to see the originals to conduct a forensic analysis to see if there's a type of fraud with respect to the copies. But if that wasn't an interest of them of theirs at all during the litigation, it certainly wasn't an interest during the trial. The sole objection is simply the best evidence rule
. And that is what it is. Excuse me. When I was a lawyer, I thought the best evidence rule was a, was a pretty relevant role. Certainly, certainly it's a relevant rule. But if there's good copies available and if the originals are not there, then the court would analyze, well, what is the real prejudice to the defendants here and not having the originals here, given that they've only asked for them in an email for the. Excuse me. I didn't hear your answer to the question. If this sanction is too severe, what would be an appropriate sanction? Maybe I was making a note and I didn't hear you. Sure, I said this. I think that the, not using them. Yeah, not using the originals. Okay, so, and I say that because we did produce all of the relevant copies, two sets of copies, they had those from the very beginning, from the very beginning of the litigation. And that's what we've all used during the litigation, those copies. So just because, I mean, there's just because they emailed me a trial subpoena asking for the originals of all medical knows and various other documents. Does not mean that my not having those originals at trial, that they were prejudiced in any way as a result of that. They simply were not. Mr. Zatuchni, I have a legal question that goes to the manner in which the district court ultimately analyzed this and he analyzed it as an issue of foliation. Now, I would grant, at least in my view, that this is not the classic spoliation case, nor do I know of any case within third circuit jurisprudence, that finds this type of non-production spoliation. But it seems to me it's also not a stretch to say that it's spoliation. Would you say that the district court properly used spoliation principles to analyze this and I'll be interested in hearing from Mr. Bissinger on this point as well? I don't believe so, Your Honor. Spoliation deals with not producing or destroying documents in response to valid discovery requests
. Well, so you would define it then as something that actually destroys or alters the evidence. Is that your take? Yes, Judge. Because there is case law out there that looks to actual suppression or withholding of evidence as being at least a part of the test. And that's why I'm curious. That's true, but at every such case there was a valid discovery request during the litigation for the request material. I've never seen a spoliation case where materials that were never mentioned, referred or requested at all by the opposing party during the discovery stage in litigation, somehow gives rise to a spoilation inference. Okay, your time is way up. Okay, I'm sorry. It's all right. We'll get you back on our bottle. Okay. May I please the court, Mike Bissinger, the firm of date, Pitney for a defendant, United Parcel Service. Were you trial counsel, Mr. Your Honor? I was your Honor. So you are here to argue the propriety of the mistrial that you never ever wanted. Your Honor, I'll answer that question right now. You have to. I know I did. That's why. I twice, I believe, I told the court that I did not want a mistrial to occur. And the reason I didn't want the mistrial to occur was the very reason why the court felt compelled to dismiss the case after the mistrial did occur. One, this is a case that we had a prep, prepare for for several weeks. There are multiple witnesses
. It's tens of thousands of dollars, several weeks of prep and trial in court. You have 15 people in the court, nine jurors, a federal judge, a sheriff's officer, a court reporter, two lawyers for our side, one lawyer for their side, my client, their client. Okay. It's not simply showing up one day and trying to kill you. Mr. Bissinger, did you ask in discovery for the original documents? I'll answer that question, Your Honor, but can I just, can I finish my response also? There's two reasons why I asked that mistrial not occur. The second reason was, Ms. Bull had sat for three days and listened to all of my arguments regarding all of the evidential rulings that were made. She got a second big bite of discovery. She listened to my generation of impeachment material. She listened to my opening statement. She sat there through her direct. Okay. I did not want her to be given the opportunity to use all of that knowledge to come back now. And the other thing, Your Honor, is she's not allowed, if the trial continues, she's not allowed to use either the original or the clear copy of that note because she didn't bring it with her trial. I didn't even have to send this to Peter. She had an obligation to bring the original document to trial. I had objected to authenticity of that document at the pre-trial conference in front of Judge, to my judge, Judge Schwartz. He knew that I was going to object to that at trial. He said in his briefs in opposition that the authenticity is going to be an issue at trial. Understood. I've not now been even more interested to hear your answer to Judge Sloveter's question. Your question was, did I request the documents? Yeah
. I mean, that's what the brief says you didn't. Here is what happened, Judge. UPS pre-litigated. See, there's a yes or no, and then the explanation. My answer would be yes. The September 27, 2006 letter from UPS specifically requested the original's pre-litigation to their hearing bill. Pre-litigation, not pursued to give the summary rules. I then produced that letter. What? September 27, 2006 letter, which is in the record. I then produced that letter in December 2007 to counsel for Ms. Bull requesting the originals because we still want the originals to see if we could reinstate it back to work. There was a question as to the authenticity of the notes. Yeah. I then sent a subpoena to Mr. Zatuchni prior to trial so that we could avoid. He says inappropriately. He says inappropriately. He had an obligation to have the document there anyway given all of the other objections to the authenticity. I did not want to get the trial and start the trial with that. I wanted to look at the document. I wanted to examine the document before I gave my opening statement. There were a lot of differences in those two doctors notes from the signature to the boxes that were checked. In the fact they were cut off at the exact same place, the facts versions that we got. I wanted to look at the document at the original document before the trial started. I never got the opportunity to do that. And it's not Mr. Zatuchni's fault. I really judge Mr. Zatuchni was told when we served our discovery responses in our discovery requests. Mr. Zatuchni's brief makes clear that he got those requests and he knew that the originals needed to be at least obtained. He asked his client for them. She said they were lost in a flood. Okay. So she's dishonest with her own lawyer at the beginning of the case. And that carries over to the trial because he doesn't ask her about the subpoena according to his brief because he believes they were lost in a flood because she lied to him. Then she testifies a trial the first time she's asked where the documents will I look for them and I couldn't find them. Well, that's dishonest as well. Then Judge Kavanaugh. Because she never looked for them. Then Judge Kavanaugh asked her a third time. Did you look for the documents? She said no. So she continues to lie about whether she even looked for the documents up through the last time that Judge Kavanaugh asked for. And then that is what caused the mistrial. Putting aside whether I subpoena the documents or not. I was objecting to the authenticity of documents throughout the entire case
. I wanted to look at the document at the original document before the trial started. I never got the opportunity to do that. And it's not Mr. Zatuchni's fault. I really judge Mr. Zatuchni was told when we served our discovery responses in our discovery requests. Mr. Zatuchni's brief makes clear that he got those requests and he knew that the originals needed to be at least obtained. He asked his client for them. She said they were lost in a flood. Okay. So she's dishonest with her own lawyer at the beginning of the case. And that carries over to the trial because he doesn't ask her about the subpoena according to his brief because he believes they were lost in a flood because she lied to him. Then she testifies a trial the first time she's asked where the documents will I look for them and I couldn't find them. Well, that's dishonest as well. Then Judge Kavanaugh. Because she never looked for them. Then Judge Kavanaugh asked her a third time. Did you look for the documents? She said no. So she continues to lie about whether she even looked for the documents up through the last time that Judge Kavanaugh asked for. And then that is what caused the mistrial. Putting aside whether I subpoena the documents or not. I was objecting to the authenticity of documents throughout the entire case. There was still a bit of mistrial. Okay. Because she's not allowed to come in. Tell the Judge that the documents don't exist. He lets the copy get into evidence as an exception to the best evidence rule and then testifies what the original does exist. He would have borrowed her from using that clear copy because she had an obligation to bring it to trial. That's what would have happened. That never we never got there because she was dishonest. And you know what Judge? There is significant prejudice here. Okay. A three day trial. 30 to 40 hours of attorney time for two lawyers in court with all of the other people in the courthouse and all of the prep time. And the fact that she gets to observe our case. I think the cases have found that there's significant prejudice. And you know, the appropriate remedy that was discussed by Judge Kavanaugh. One of the other remedies discussed in the hearing was possibly sanctioning her for attorney's fees. Well, her lawyer said that she would go bankrupt. Well. So that's not an approach. I mean, so what happens then? That may be an inevitable result. And then it's handed consequences. And that doesn't compensate my client for what happened in court to now have to go and respend all that money and try this case again. Did you ask us an alternative? I did your honor
. There was still a bit of mistrial. Okay. Because she's not allowed to come in. Tell the Judge that the documents don't exist. He lets the copy get into evidence as an exception to the best evidence rule and then testifies what the original does exist. He would have borrowed her from using that clear copy because she had an obligation to bring it to trial. That's what would have happened. That never we never got there because she was dishonest. And you know what Judge? There is significant prejudice here. Okay. A three day trial. 30 to 40 hours of attorney time for two lawyers in court with all of the other people in the courthouse and all of the prep time. And the fact that she gets to observe our case. I think the cases have found that there's significant prejudice. And you know, the appropriate remedy that was discussed by Judge Kavanaugh. One of the other remedies discussed in the hearing was possibly sanctioning her for attorney's fees. Well, her lawyer said that she would go bankrupt. Well. So that's not an approach. I mean, so what happens then? That may be an inevitable result. And then it's handed consequences. And that doesn't compensate my client for what happened in court to now have to go and respend all that money and try this case again. Did you ask us an alternative? I did your honor. How much was the dollar? I did not give the judge a specific dollar amount. I can tell the court that it's tens of thousands of dollars. So I look at ten-hour day in court. It's $4,000 just for me. Well, and that's at a discount rate. Did the district court go through with council the possible, the police case, what the six factors? The district court, in its opinion, specifically outlined. It's the six factors of the police case in the white. Was, was, was, was, it was an appropriate precedent to apply to what occurred here? I was trying to fit the police into what occurred here because in the district court's opinion, the police analysis follows a discussion of spoliation. Yes. And it seemed to me that if this constitutes spoliation, if it can fit within the nature and principles of spoliation, that the spoliation analysis and a determination that that occurred in and of itself should be enough, and then that the next question is simply one of remedy. Would you agree with that? Your honor, I agree that there was spoliation. I think the case was clear that withholding key evidence, even though you don't destroy it, could be spoliation. And certainly she would held it from her lawyer, her own lawyer, throughout the entire case, and attempted to withhold it again, a trial when she first said she didn't look for it and didn't exist. And with regard to the police factors, my reading of the case law was that the judge needed to go through that analysis if there was going to be the, the, the sanction of dismissal. I think, pull us, which I know a little bit about, applies whenever there's a dismissal. I think that's what it says. That was my understanding of the case law. I don't think it's limited to a discovery violation. It's used by lawyers. We checked. It's inside of 23,000. And in your honor to argue that there was no discovery violation here to me stretches through rules beyond any meaning. Ms
. How much was the dollar? I did not give the judge a specific dollar amount. I can tell the court that it's tens of thousands of dollars. So I look at ten-hour day in court. It's $4,000 just for me. Well, and that's at a discount rate. Did the district court go through with council the possible, the police case, what the six factors? The district court, in its opinion, specifically outlined. It's the six factors of the police case in the white. Was, was, was, was, it was an appropriate precedent to apply to what occurred here? I was trying to fit the police into what occurred here because in the district court's opinion, the police analysis follows a discussion of spoliation. Yes. And it seemed to me that if this constitutes spoliation, if it can fit within the nature and principles of spoliation, that the spoliation analysis and a determination that that occurred in and of itself should be enough, and then that the next question is simply one of remedy. Would you agree with that? Your honor, I agree that there was spoliation. I think the case was clear that withholding key evidence, even though you don't destroy it, could be spoliation. And certainly she would held it from her lawyer, her own lawyer, throughout the entire case, and attempted to withhold it again, a trial when she first said she didn't look for it and didn't exist. And with regard to the police factors, my reading of the case law was that the judge needed to go through that analysis if there was going to be the, the, the sanction of dismissal. I think, pull us, which I know a little bit about, applies whenever there's a dismissal. I think that's what it says. That was my understanding of the case law. I don't think it's limited to a discovery violation. It's used by lawyers. We checked. It's inside of 23,000. And in your honor to argue that there was no discovery violation here to me stretches through rules beyond any meaning. Ms. Bull had an obligation before the case when she filed a workers comp lawsuit against UPS to maintain and preserve those documents. They were the key to that case or the key to this case. She identified them in rule 26. She identified them in discovery. She produced clear copies of them. I don't know how she made clear copies of them without having the originals okay midway through discovery, but she managed to make clear copies of them. That's an interesting point I have in the footage. So there was clearly an obligation to locate and preserve those documents under rule 26. She either didn't do that or was dishonest about it and how that is not a discovery violation. I don't know. Okay. And judge, you know, every lawyer on a case like this, if you're trying a case, and the crucial evidence in the case on whether or not Mrs. Bull reasonably engaged in a good faith interactive process with UPS. Rest on two doctors notes that we suspect one of them was forged. In fact, the doctor said he never authorized the second note. She was never examined. Somehow her limitations were changed. We still don't know who signed the note. When that's the key evidence, and I asked for the origins to look at it's obvious why I wanted to look at them. It's a linchpin of the case. And I don't want to be surprised by something that might be written on the back of the document or on the bottom of the document because it was cut off at trial. Not having that there significantly prejudice me. And now we go back and what's going to be the remedy
. Bull had an obligation before the case when she filed a workers comp lawsuit against UPS to maintain and preserve those documents. They were the key to that case or the key to this case. She identified them in rule 26. She identified them in discovery. She produced clear copies of them. I don't know how she made clear copies of them without having the originals okay midway through discovery, but she managed to make clear copies of them. That's an interesting point I have in the footage. So there was clearly an obligation to locate and preserve those documents under rule 26. She either didn't do that or was dishonest about it and how that is not a discovery violation. I don't know. Okay. And judge, you know, every lawyer on a case like this, if you're trying a case, and the crucial evidence in the case on whether or not Mrs. Bull reasonably engaged in a good faith interactive process with UPS. Rest on two doctors notes that we suspect one of them was forged. In fact, the doctor said he never authorized the second note. She was never examined. Somehow her limitations were changed. We still don't know who signed the note. When that's the key evidence, and I asked for the origins to look at it's obvious why I wanted to look at them. It's a linchpin of the case. And I don't want to be surprised by something that might be written on the back of the document or on the bottom of the document because it was cut off at trial. Not having that there significantly prejudice me. And now we go back and what's going to be the remedy. I still don't know what's on the bottom of the document. And I certainly don't want the original to be in the case because she shouldn't have two bites at the apple now she didn't bring it to court the first time. Okay. Any questions? You're on. Well, you still have time. Very rare. I was told once that less is more. Okay. I don't have any more questions. Okay. Thank you. How do you answer the point that which I hadn't really thought of that you produce your client produce copies of documents that she said she didn't have? No, well, I assume that she made copies much earlier when she first got those documents and that's what she kept and that's what she. You mean, and she just kept the copies around and not the original? Yeah, that she put the originals away. But you know, if I can just address. Well, wouldn't she know where she put them away? If she put them away? Well, Judge, I mean, I mean, we're talking about a lay person, all right, who is a part of an employee at UPS. I mean, she's so she, I mean, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, Council said here today, again, it's an ad hoc or post hoc rationalization. He told you that he did ask for these in discovery? That is absolutely false. What he produced was about the September 27th 2006 letter. That's a letter from UPS to the union that predates this litigation by eight months. What does it ask for? Is it in the record? You said it was in the record. It's a very big record. And penics. It is a big record
. I still don't know what's on the bottom of the document. And I certainly don't want the original to be in the case because she shouldn't have two bites at the apple now she didn't bring it to court the first time. Okay. Any questions? You're on. Well, you still have time. Very rare. I was told once that less is more. Okay. I don't have any more questions. Okay. Thank you. How do you answer the point that which I hadn't really thought of that you produce your client produce copies of documents that she said she didn't have? No, well, I assume that she made copies much earlier when she first got those documents and that's what she kept and that's what she. You mean, and she just kept the copies around and not the original? Yeah, that she put the originals away. But you know, if I can just address. Well, wouldn't she know where she put them away? If she put them away? Well, Judge, I mean, I mean, we're talking about a lay person, all right, who is a part of an employee at UPS. I mean, she's so she, I mean, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, I, Council said here today, again, it's an ad hoc or post hoc rationalization. He told you that he did ask for these in discovery? That is absolutely false. What he produced was about the September 27th 2006 letter. That's a letter from UPS to the union that predates this litigation by eight months. What does it ask for? Is it in the record? You said it was in the record. It's a very big record. And penics. It is a big record. There's thousands of pages. Yeah, okay. Where is it in the account? It's our penics volume one. 58. Okay. Thanks. All right. You know you're not on the tape because you're not there. I'm sorry. Okay. So and we'll get you later. No. I think. Go ahead. Okay. So so so they're claiming that the production we asked for all communications as part of their their production between the union and the company regarding this bull. They produce lots of correspondence. One of them is a letter that predated the litigation by eight months. Now that's somehow. What's the difference is that make that a predated the litigation? Well, I never had I think it makes a difference because it's not a discovery violation. There's no discovery request. All right. They had all their opportunities to conduct discovery
. There's thousands of pages. Yeah, okay. Where is it in the account? It's our penics volume one. 58. Okay. Thanks. All right. You know you're not on the tape because you're not there. I'm sorry. Okay. So and we'll get you later. No. I think. Go ahead. Okay. So so so they're claiming that the production we asked for all communications as part of their their production between the union and the company regarding this bull. They produce lots of correspondence. One of them is a letter that predated the litigation by eight months. Now that's somehow. What's the difference is that make that a predated the litigation? Well, I never had I think it makes a difference because it's not a discovery violation. There's no discovery request. All right. They had all their opportunities to conduct discovery. But I thought your point was that they never you asked for it. That you didn't that you they weren't asked for it. Doesn't make a difference. Yeah, it makes all the difference because counsel is standing here telling you that he was interested and wanted to see this original note that that cannot be farther from the truth. Yet no interest in viewing this original note. Did you know that there was an authenticity issue? I I knew that they claim well, this is the this is the issue. No, that's a simple question. Yeah. Did you know that there was an issue as the authenticity of the doctors now? No, I did not know that you did not know going into trial that there was an authenticity issue as to the second of the two doctors. No, because the testimony in the record was from Dr. Farber that that second note came from his office. He didn't sign it. He also said he did not sign it. That's right. He said it was not his signature. That's right. He said that in his deposition. That's right. But he also said I asked him did this come from anybody. The implication is somehow that she what stole a script and and enforced his signature. Is that the implication of the trotomic that is not an implication that was ever I reasonably made in this litigation? The evidence was clear and undisputed. She went and got treated once. I'm sorry
. But I thought your point was that they never you asked for it. That you didn't that you they weren't asked for it. Doesn't make a difference. Yeah, it makes all the difference because counsel is standing here telling you that he was interested and wanted to see this original note that that cannot be farther from the truth. Yet no interest in viewing this original note. Did you know that there was an authenticity issue? I I knew that they claim well, this is the this is the issue. No, that's a simple question. Yeah. Did you know that there was an issue as the authenticity of the doctors now? No, I did not know that you did not know going into trial that there was an authenticity issue as to the second of the two doctors. No, because the testimony in the record was from Dr. Farber that that second note came from his office. He didn't sign it. He also said he did not sign it. That's right. He said it was not his signature. That's right. He said that in his deposition. That's right. But he also said I asked him did this come from anybody. The implication is somehow that she what stole a script and and enforced his signature. Is that the implication of the trotomic that is not an implication that was ever I reasonably made in this litigation? The evidence was clear and undisputed. She went and got treated once. I'm sorry. She went and got treated once. Got her original note. They told that she needed more to the 70 pounds. She called the office. Told them she needed another note. She came in. It was sitting there waiting for her and she put it up. Didn't he say something like he wouldn't have signed a note like that without doing another examination? He did say that. So isn't that a question of the orphan? Doesn't that implicate the authenticity of the new? No, it implicates his, it implicates their internal procedures, but it doesn't implicate the authenticity because he also testified that it is highly improbable that this note came from any place else except from his office. Given all of that and even if I concede to you as I'm prepared to do that there was not a formal discovery request, pursuant to the rules of civil procedure as they apply to discovery, I don't see how you can say once you are presented with the trial subpoena that you don't think there's an authenticity question anymore. So what are we saying then? No, you can't ask questions. He asked the questions, you have things. I mean, I'm in there rhetorically, Your Honor, I'm sorry. So then her claim is appropriately dismissed or she's appropriately sanctioned for non-compliance with the non-compliance trial subpoena that had... Speaking of post-hook, Mr. Zotukni, which you've accused your adversary of my reading of the records suggests that your contention regarding the technical deficiencies in the trial subpoena, which the district court concedes, were also presented post-hook. They were never raised, pre-ordering trial, or until this controversy relative to dismissal was taken up before the district court. Is that right? That is correct, Your Honor, but that's only because within no of the existence of the originals. That's why. Okay. Okay
. She went and got treated once. Got her original note. They told that she needed more to the 70 pounds. She called the office. Told them she needed another note. She came in. It was sitting there waiting for her and she put it up. Didn't he say something like he wouldn't have signed a note like that without doing another examination? He did say that. So isn't that a question of the orphan? Doesn't that implicate the authenticity of the new? No, it implicates his, it implicates their internal procedures, but it doesn't implicate the authenticity because he also testified that it is highly improbable that this note came from any place else except from his office. Given all of that and even if I concede to you as I'm prepared to do that there was not a formal discovery request, pursuant to the rules of civil procedure as they apply to discovery, I don't see how you can say once you are presented with the trial subpoena that you don't think there's an authenticity question anymore. So what are we saying then? No, you can't ask questions. He asked the questions, you have things. I mean, I'm in there rhetorically, Your Honor, I'm sorry. So then her claim is appropriately dismissed or she's appropriately sanctioned for non-compliance with the non-compliance trial subpoena that had... Speaking of post-hook, Mr. Zotukni, which you've accused your adversary of my reading of the records suggests that your contention regarding the technical deficiencies in the trial subpoena, which the district court concedes, were also presented post-hook. They were never raised, pre-ordering trial, or until this controversy relative to dismissal was taken up before the district court. Is that right? That is correct, Your Honor, but that's only because within no of the existence of the originals. That's why. Okay. Okay. Your red light is on. Yes. Okay. Thank you, Your Honor. Thank you. I think we've heard this and just give us the page. We'd like to. The page that was cited to your Honor prior was the supplemental penics volume 1, page 58. They can't argue. I don't want to argue. I just want you to get another page. Okay. So, page 58. Go ahead. The question posed was whether Mr. Zatushi knew about the authenticity issue going into trial on the defendant's supplemental appendix volume 1, page 52, quoting from his brief, is clear that defendant intends to question the authenticity of both these notes. So. Well, yeah, no argument. Thank you, Your Honor. Thank you. Okay. We'll take this matter under advisement. And we'll move to R&J holding company versus RDA