Okay, Mr. Ashley, you may proceed. May I please the court? Michael A. Moore appeals from the district courts March 28, 2012, order finding him in contempt. Mr. Moore was held in contempt based upon his conduct as Council for Dean Catler. Mr. Catler was the defendant in the underlying case. The underlying case involved a suit by waste management over Mr. Catler's departure from waste management and his subsequent employment with Emerald Services Inc., which was also a client of Mr. Moore's. The underlying case, actually the contempt award, found Mr. Catler in contempt and found Mr. Moore jointly and severly liable with him for the contempt and for the fee award, the $65,000 fee award that the court subsequently imposed. Mr. Catler subsequently paid the fee award in full in July of 2013. The underlying case settled in December of 2013 and we believe all indications are that that included a release of the claims, any claims that waste management had against Mr. Moore, which is the basis for our motion is missed, which is being done. I'm sorry, you moved to dismiss the appeal. What did you move to dismiss the appeal? We moved for the dismissal of waste management as a party to the appeal. You're on the basis that they had no continuing just as you go interest. But you want, obviously, you're wanting to continue your appeal. Yes, we obviously did, Your Honor. The basic points we're making are there was a lack of notice and further that there's on the record is exists now
. There was no basis for the contempt finding in the first place against Mr. Moore, nor is there any basis for further contempt proceedings in the district court. With respect to notice. It's actually, you have a very strong argument on that point. I wonder what relief you really seek from us if you're asking us to send it back to the district court. But Your Honor, my point and really the second point we've argued in the brief is that you want to walk out of here, of course. But I'm thinking that you argument with the guard the notice, et cetera, but me, you resonate very strongly. But that's worth it. But then there's a suggestion that apart from the notice, if in fact after a due process type of adequate notice, et cetera, the same conduct or examine that it could sustain the, that's what contempt finding. And that's I'm very interested in what, what is that so is there anything in that matter or not? Let me address that. If we agree with you with the guard of that process, do we simply reverse our right or do we send it back? All right, let me address that, then Your Honor. The situation was that there were actually two contempt proceedings that occurred in the district court. First, a waste management filed on January 8 of 2013, a motion for an order show cause. A show cause order was issued and then there was a hearing held on January 22 before the district court. At that hearing, there was forensic evidence produced, specific forensic evidence produced for the first time, that strongly suggested that Mr. Katler had on August 28, 2012, downloaded a large volume of waste management documents using a very specific. Let's set the cruise, say, and cruise disc aside. What about the iPad? Well, the iPad, once they concluded the hearing, the January 22 hearing, and then the district court enters its order on January 23. That does not make any specific additional directions. The order does generally admonish both sides to comply with the existing orders. So with respect to the iPad, you had the December 18 order that was issued after the temporary injunction hearing. And that order, they argued at the hearing over whether that order applied to the iPad or not. And it's clear that the record is clear that the district court at the January 22 hearing determined that it did. And so the image of the iPad was specifically then ordered to be produced
. And it was produced two days later on January 25, 2013. The image of the iPad was delivered to waste management. And waste management accepted that delivery and made no complaint about that in their second motion for contempt, which was filed on February 14, 2013. There was confusion, and the record is confusing over whether there was an, whether Katler's attorneys, Mr. Moore and the Bernmanger-Mainter Lawyers, were supposed to profisically produce the iPad itself. If you look at the context of that discussion in the transcript, the January 22 transcript, Ms. Williamson begins to complain that they haven't received the images of the iPad. Mr. Moore, as he responded, he does, and he says inadvertently in his declaration, use the word device instead of image of the device. And so the district court then says, Mr. Moore says that if the device was supposed, itself was supposed to be produced. As opposed to the image, then we didn't understand that. And the court then says, I think that's what my order said, referring to the December 18 order. It's clear that the court's mistaken about that. The December 18 order did not order the device itself. It ordered the image of the device. And so the concern, the concern that the Bernmanger lawyers and Mr. Moore had about producing the image of the, both the image of the device and the device itself, was that that device had been used by Mr. Katler and Mr. Moore to communicate. And so there was concern that there were privileged communications on- It was clear after the January 22 hearing that the district court thought, rightly wrongly, but by that hearing, the district court said turnovers of the physical op-pass. The district court thought that. But he said on the bench, turn it over. Well, Mr
. Actually, it's the little if it's in order, it's in order that more in response to more suggestion. He says, if that's what you want, we'll produce it. And the district court said, that's what he wants. So the, but then what happens is they produce the image, waste management accepts the image. And in their, in actually their response and the second motion to for contempt, they acknowledge that they accepted that is sufficient. And, but then when they examined the iPad image, they didn't find the emails on the image that they were looking for. So they then, their forensic expert then says, this is Mr. Kirsch and this is documented in his testimony in the March 5 hearing. Says, well, we can, there's now a procedure available that would allow us to search into the recessed memory of the, of the iPad and capture emails there that nobody, no user or nobody else who didn't have the ability to hack into this recessed memory, would be able to capture. And so that then creates the controversy at the March 4 and 5 hearing what the, what judge, the district judge ends up doing is allowing Mr. Kirsch to conduct, he enters the March, a March 5 order that actually we didn't refer to in the brief, but there's a specific order that the district court entered. March 5, but the hearing that provides a procedure where Mr. Kirsch is going to do this jailbreak search. And if there are any privileged, potentially privileged communications, then those are going to be, they're going to give the burn-manored lawyers who were representing Kavr Soly at that time, the opportunity to claim privilege on those. And, and then the court will rule on it. And if you look at its pages 66 through 100 of the March 4 transcript, there's this a long discussion where the district court finally, he seems confused at first, but then he understands that there, and he accepts the concern about privilege. That is the reason that the burn-manored lawyers and Mr. Moore had resisted turning over the iPad image in the first place and were resisting turning over the iPad itself. The other point, and the critical point is that Mr. Moore, because of the conflict system that situation that developed with respect to the San Discruiser, on January 24, 2012, he meets with Mr. Katler, and there's a conflict situation that develops because Mr. Moore is representing both Emerald and the United States. And the, and Mr. Katler, he consults with a professional responsibility expert who also has given the declaration, and these declarations, of course, were sealed because there is attorney-client communications in there
. But, and so they determine that Mr. Moore needs to withdraw. And so, which he does formally on the record on the 25th of February, but, and this is documented in detailed in Mr. Moore's declaration, he, he's conflicted in his representation from the 24th to the 28th. So, he withdraws from the representation or ceases providing legal advice to Mr. Katler on the 28th. He gets the burn-manored lawyers involved, and they agree to continue the representation on the 29th. So, it wasn't Mr. Moore's decision as to whether to turn over the iPad itself or not. Once waste management begins complaining about that, they're complaining to the burn-manored lawyers, and Mr. Moore does not participate in the decision on, on whether to turn over the iPad itself or not. And as I say, what, what the district judge ultimately does is he holds Mr. Moore in contempt for failing to turn over the iPad, but then validates the conduct of the burn-manored lawyers who raised the privileged problem at the hearing and, and the judge accepts those arguments. So, for those reasons, we think the notice issue requires reversal, because there clearly was no notice from the district court, but the record as supplemented with the materials we provided in our motion to vacate the contempt finding shows that there's no basis for the contempt finding that was made and no basis for further proceedings. And so, the situation in our view is the same, essentially, as it was in the Ibarra case that we decided where- Hey, Mr. Asher, your time is- The underlying case that settled in the rendition was the judgment not a remand. Okay, thank you, sir. Mr. Williams? Please, the court. Mr. Asher, he wasn't present during all of the hearings that led to the court's contempt order. I was personally involved with every one of them, every one of the motions. The addressing first, the issue of whether I on behalf of waste management should be- I should go outside the record, that shouldn't matter. Thank you, Your Honor
. The addressing first, the issue of whether waste management should be here. The fliming case- Are you here? I'm sorry? You're here. I am here, Your Honor. That's about all you wanted to do is make the argument. It's not the monetary issues that I'm here about. It's to protect the integrity of the court. The- Vengeance is mine, sir. waste management. Your Honor, the- This case started off in December of 2012 and- Or 2011, excuse me- Or December of 2012. And we went to the court and informed the court and Mr. Catworth's attorneys and his lead attorney who was doing the speaking and- And talking to the court and conversing with us was Mr. Moore. And when they told the court that they had one Western digital hard drive, a personal laptop, and one thumb drive, we told them at that point in time there's more. We have more. We know there's more out there. We'll find that in the record. You're going to find it in during the December- December 6th, 2012 hearing. So you're going to find it. Well, I mean, what- But what- What you're saying then, it seems to me is that- Where you got to get through notice. If there's no notice here, you're asking for a remand. Is that what you're doing? I mean- If- If there- You got to get past that. Because it seemed to me that I mean that nobody even thought that Moore was involved in this so much as- As the- Plenty for himself. I mean- Your honor in our January 8th motion to show cause. Repeatedly, we stated that it was Mr
. Catler and his attorneys who had engaged- Pletings are not sufficient notice. We have set out for good reason to bright clear rules about what courts must- Jumps they got to make in order to decide a lawyer for content. And those are just weren't complied with here. And your pletings don't get it. You got- The notice given- The notice is missing conspicuously when you do get notice, You give it precisely to the individual defendant himself and not to the lawyer. Your honor in the- The visor of this case in American Airlines, the court stated that- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- In that adequate notice given what precisely did this lawyer himself do as extinguish to his client? How that sustains his content for him? His client testified that he had given the- The iPad, starting with the iPad- To the attorneys at the beginning of December of 2012, In the December 20th order of Judge Void, He orders them to produce within two days of that order- An image or the original. of the devices that Mr. Catler used was live first of 2012 that were not provided to him by Emerald. It's current important. When we filed the motion to show cause on January 8, we attached the correspondence with Mr. Moore, where we repeatedly remind him and ask him to comply with that court's order. They, Mr. Moore, continues to take the position that it is an Emerald device, even though that device was provided to Mr. Catler by Ways Management. We then, for that reason and other reasons, have the show cause hearing in December 2013. The, our pad was produced. After two court orders were violated and by months, your honor, by months, the, the first, the December 20, and said an original or a copy within two days, we got neither within two days. We didn't get anything until the end of January, which was an image and that was after Judge Hoyt ordered them to produce the original. We were exhausted by that point, dealing with them because we had been, it's reflected in Judge Hoyt's order, the run around on a cell phone, the thumb drives, and the iPad. And if you read the correspondence between Council to attach these motions, it's between Mr. Moore and my office or me, where they will not give us a direct answer. So we take the image, which they know doesn't provide us with, with, with the emails. And they know that because they had a forensic expert look at it before, we got it. And so they finally give us the image, but apples, the way the apple has its technology set up, you have to what, what's called a jailbreak to get behind that
. When was the last correspondence with Moore about the iPad? I believe it was in January or early February of 2013, Your Honor. Where is it in the record? It's in the record, Your Honor. I understand where. I mean, is it exhibit to the hearings? Yes, Your Honor. It's exhibits to our motions for, to show cause and motion for reconsideration. In addition, our motions, the, each of those motions were also motions to compile. Mr. Moore had custody and control of that iPad. And Mr. Moore made the decision not to reduce it. The orders are very clear. There's nothing ambiguous about those orders. And, and he, when he told the court in January, January 20th hearing that, oh, if I was mistaken, if I misconstrued your order, under oath, I apologize, and I will happily give that to them, you know, the next day. Well, a few days later, we get an image, but we don't get the original. At that point, we didn't know that an image was no good. Usually an image of an electronic device is good enough. And then once we realized that we had to have the device itself, we went back and said, in Judge Hoyt, what did you to give us the device? Now, give it to us. And Mr. Moore was still counsel for Mr. Katler at that point. You initially accepted the images as being sufficient to fly out of the order. I'm sorry, Your Honor? You initially thought, accepted the, the images that you got as compliance with the order. Because you thought they're going to give you what you wanted. And then you, they didn't give you what you wanted, then you came back
. We didn't necessarily believe it was a compliance with the order, but if it would give us what we needed, we weren't going to go back and pass to Judge Hoyt on something that didn't matter. If the image was the same as the original, we weren't going to go back to Judge Hoyt and complain. But once we realized that the image was not the same as the original, we said, okay, Judge Hoyt, we should have had the image over a month ago according to Judge Hoyt's December 20th order. Or did you go back to the lawyer and say, wait, but these images are not going to show us the emails. And then bring it, we want the, the, the, the, the, the. Yes, Your Honor. And Mr. Moore was copied on all those emails. He was copied on all of the pleadings, all of the motions. He was on all of them, whether he weighed in later on or not. He was on all of them. When did you all realize he was no longer representing, when did the context switch from Moore to Baron Maynard? When did we cease communicating with Mr. Moore? Yes, on behalf of the defendant individually. After he moved with draw on February 25th. So did he respond anything in the meantime on behalf of? I believe that he did respond to a few emails, but he was leaving it to Baron Maynard and Parsons. Of course, we're not aware of the, you know, the gymnastics that's going on behind the scenes with the lawyers. They're all still representing Mr. Katler. And Mr. Moore has, was the one who told Judge Hoyt will happen to be the one who told Judge Hoyt that he will not be able to fully produce the device tomorrow. If I misconstrease your order under oath, I'm very sorry. And so he's in all of these emails, you know, copied on all these emails, he's copied on the petition. There may be a few times that he's responded. We noticed that we're getting more
. Is there any evidence he knew when he gave me the image that he knew it was incomplete? Well, your honor, he's getting the emails from us saying it's incomplete. We need the original. And that original was in Seattle at that point, where Mr. Moore is located. At some point, Seattle ships it to Houston, to the Baron Maynard lawyers, and the next to us. I'm losing the thread here. I thought you said he thought Penn was turned over the lawyers in December. It was turned over to the lawyers in December, and they gave it to Forensics expert in Seattle. So they were the ones who gave it to that Forensics expert in Seattle, and she held it, but they had custody and control, as evidenced by when they wanted it shipped to Houston without consulting with us, and that's in the record. Without consulting with us, she shipped it to Houston to Bermaynard and Parsons. And so they had custody and control over that iPad the whole time, and we couldn't get them to comply. Baron Maynard wasn't held in contempt for withholding the iPad. You're right, Your Honor, but Judge Hoyt does mention in his order that the attorney's plural failed to comply with his orders. But it was Mr. Moore, who was standing before Judge Hoyt, and as I said to Judge Hoyt at one point, he looked straight in the eyes. He looked straight in the eyes and said, there is no thumb drive out there. Well, forget the thumb drive. I mean, I'm trying to separate that from the iPad for the moment. What I mean, why is it that Mr. Moore should be in contempt and not Baron Maynard over the iPad? Mr. Moore was the one making the representations to Judge Hoyt, for example, when he made the representation, we thought it was an Emerald device. There's no way it could be an Emerald device. It had waste management sticker on it when they finally produced it. Mr
. Moore had seen the device. Mr. Moore knew that it was a device. You got everything you needed, and that you weren't happy with. It took you too much trouble to do it. And the result of this is this lawyer, what was the contempt award up to $75,000? $85,000 plus. Yeah, well, that plus took you to $70,000, something thousand dollars, I saw the recall. And the lawyer who had withdrawn from the litigation. When were notices, you know, if you thought he was a real culprit, you shouldn't give the notices and that they were formally filed. So it strikes me as an extraordinary outcome of what I regard as a standard discovery fight that goes on litigation. And it struck me that the lawyer was first of all, you want to talk about that drive a lot, but the lawyer made the representation, it's client late. And then when the client backed off of that, the friends it came in and then the lawyer went through. So I'm not clear what's going on here, rather than what's the point of all this. You're on that had to do the thumb drive. Mr. Moore had control over that iPad the whole time. He was the one who refused to produce the edge in response to judge hoids to December 20th order. He's the one who refused to produce the iPad itself after the January 20th hearing. So it was Mr. Moore who was in control. That iPad was in Seattle. It wasn't in Houston for a minute in Parsons. When you read and I'm sure you've already read some of that. If you got in the iPad there, you wouldn't have gotten this up anyway because the images didn't disclose it. Unless you've been using this application that you didn't get too much later. So I mean, I... In other words, they gave you the images and at that point, there's nothing to suggest. That no one thought that you would... That wouldn't be an accurate reflection of what's there on that you could go further with it. Yes, your answer is. Because when they gave us the image, they weren't panicking about the attorney client communications. It was only when we went back to them and said, by the way, we aren't getting anything. Actually, what was on there were some emails between a landscaper and people that we'd never heard of and some pictures. And that's only the only thing we could get. So when we go back and we say, wait a minute. Apple's technology is such that we're going to have to do this procedure called job work. That's when they panicked. They tried to start getting all this discovery because they said, we need to know what he took. And Judge Hoyt kept saying Mr. Catler knows what he used to take the data. It doesn't need discovery to tell him what he took. And so they..
. Unless you've been using this application that you didn't get too much later. So I mean, I... In other words, they gave you the images and at that point, there's nothing to suggest. That no one thought that you would... That wouldn't be an accurate reflection of what's there on that you could go further with it. Yes, your answer is. Because when they gave us the image, they weren't panicking about the attorney client communications. It was only when we went back to them and said, by the way, we aren't getting anything. Actually, what was on there were some emails between a landscaper and people that we'd never heard of and some pictures. And that's only the only thing we could get. So when we go back and we say, wait a minute. Apple's technology is such that we're going to have to do this procedure called job work. That's when they panicked. They tried to start getting all this discovery because they said, we need to know what he took. And Judge Hoyt kept saying Mr. Catler knows what he used to take the data. It doesn't need discovery to tell him what he took. And so they... They were trying to get discovery. And that's when they seek clarification, not of Judge Hoyt's order with respect to producing the device, but with respect to discovery. They never sought clarification or modification or stay on any of his orders, never. And so they're claiming, well, attorney client privilege. Well, if that were really what was driving them from the get go, they could have moved for clarification, modification. The only time they raised the attorney client privilege issue before. Well, if you... If they give the outfit and they don't think that you can look at it, the longer it is, there are no communication that images are not there. I mean, then you... Then when you tell them, no, there is a technology for going behind that and finding. And when if you go... if you go and get that, well, then we need to know about the attorney client privilege. What's untoward about that? You suggested, I guess, that they were... It's suggesting that the lawyer was participating in the actual destruction of evidence. If I read what you're saying. I, your honor, I'm not suggesting I'm saying that the
. They were trying to get discovery. And that's when they seek clarification, not of Judge Hoyt's order with respect to producing the device, but with respect to discovery. They never sought clarification or modification or stay on any of his orders, never. And so they're claiming, well, attorney client privilege. Well, if that were really what was driving them from the get go, they could have moved for clarification, modification. The only time they raised the attorney client privilege issue before. Well, if you... If they give the outfit and they don't think that you can look at it, the longer it is, there are no communication that images are not there. I mean, then you... Then when you tell them, no, there is a technology for going behind that and finding. And when if you go... if you go and get that, well, then we need to know about the attorney client privilege. What's untoward about that? You suggested, I guess, that they were... It's suggesting that the lawyer was participating in the actual destruction of evidence. If I read what you're saying. I, your honor, I'm not suggesting I'm saying that the... Mr. Moore was part and parcel of the refusal to comply with Judge Hoyt's orders. We were communicating with Mr. Moore about getting the image pursuant to the December 20th order. And Mr. Moore, even though he had custody and control of that iPad, wouldn't... wouldn't provide it. He kept calling it an enrolled device when it clearly wasn't. How long have you got the iPad after that point? How much time left? We didn't get the iPad until March 5th. And that was from Mark's field. When was this... He's going to reduce the iPad initially. The Judge ordered them to physically produce the iPad on January 20th. And you got it in March. March 5th after much effort. And having..
... Mr. Moore was part and parcel of the refusal to comply with Judge Hoyt's orders. We were communicating with Mr. Moore about getting the image pursuant to the December 20th order. And Mr. Moore, even though he had custody and control of that iPad, wouldn't... wouldn't provide it. He kept calling it an enrolled device when it clearly wasn't. How long have you got the iPad after that point? How much time left? We didn't get the iPad until March 5th. And that was from Mark's field. When was this... He's going to reduce the iPad initially. The Judge ordered them to physically produce the iPad on January 20th. And you got it in March. March 5th after much effort. And having... that was during the hearing. On March 4th, we're at the hearing. Judge Hoyt is understandably exasperated, upset. And... Judge's order... say iPad? It describes... well, his order on January 20th from the bench says the iPad. Produced them the iPad. You should have already given it to them. Give it to them. Mr. Moore agrees and says, misconstrued under oath. I'll happily give it to him tomorrow. But there is an oral statement of the judge. We found it in a transcript. Already the end or written the order. It's in the transcripture honor. And then he follows it up with a written order that says that the parties will comply with his orders that are issued from the bench or as written
. that was during the hearing. On March 4th, we're at the hearing. Judge Hoyt is understandably exasperated, upset. And... Judge's order... say iPad? It describes... well, his order on January 20th from the bench says the iPad. Produced them the iPad. You should have already given it to them. Give it to them. Mr. Moore agrees and says, misconstrued under oath. I'll happily give it to him tomorrow. But there is an oral statement of the judge. We found it in a transcript. Already the end or written the order. It's in the transcripture honor. And then he follows it up with a written order that says that the parties will comply with his orders that are issued from the bench or as written. And is written, I guess. And so he follows up on a written order that solidifies his order from the bench. He tells him, Mr. Moore agrees. He's going to do it. And so our... And Judge Hoyt, during that January 20th hearing, tells Mr. Moore and Mr. Katler, this is not a slap on the hand if you guys are hiding evidence and not complying with my orders. This is like gel incarceration sort of stuff. So you need to kind of get with the program and comply with my orders. Each hearing, Judge Hoyt, is warning Mr. Moore and Mr. Katler. But Mr. Moore and Mr. Katler, not the Bernmanger lawyers who are sitting at the table. Mr. Moore is up there talking to Judge Hoyt and telling him what he misunderstood or what he was going to do and what he didn't do. And Judge Hoyt says during the March 4th hearing with Mr. Moore who was present in the courtroom, Mr. Moore was present
. And is written, I guess. And so he follows up on a written order that solidifies his order from the bench. He tells him, Mr. Moore agrees. He's going to do it. And so our... And Judge Hoyt, during that January 20th hearing, tells Mr. Moore and Mr. Katler, this is not a slap on the hand if you guys are hiding evidence and not complying with my orders. This is like gel incarceration sort of stuff. So you need to kind of get with the program and comply with my orders. Each hearing, Judge Hoyt, is warning Mr. Moore and Mr. Katler. But Mr. Moore and Mr. Katler, not the Bernmanger lawyers who are sitting at the table. Mr. Moore is up there talking to Judge Hoyt and telling him what he misunderstood or what he was going to do and what he didn't do. And Judge Hoyt says during the March 4th hearing with Mr. Moore who was present in the courtroom, Mr. Moore was present. He says to the Bernmanger lawyers, you are the lawyers that have been making these misrepresentations to me. And he says, you know, basically it's the one back there. And I make the point that Mr. Moore is back there and Mr. Moore had looked Judge Hoyt in the eyes and made representations to him that we're not true. And so Mr. Moore is there. And he says he's there as a fact witness. I don't know what he could testify to that wouldn't be attorney-client communications or privileged. He was there because he knew that this was going to be a contempt proceeding that involved him. And he was on notice with all of the pleadings. The cases that were cited by Mr. Moore's attorneys are cases dealing with criminal contempt. For example, someone who shut up for jury duty came back to work. Their employer demoted them. The juror goes to the judge, tells the judge, the judge has the employer arrested and taken into court. They have a hearing and he's thrown in jail. Obviously, that employer had absolutely no notice. Mr. Moore's an attorney. He had plenty of notice from not only us but the court as to what we were seeking and who we were holding accountable. And Judge Hoyt repeatedly warned Mr. Moore directly, Mr. Moore, in addition to Mr
. He says to the Bernmanger lawyers, you are the lawyers that have been making these misrepresentations to me. And he says, you know, basically it's the one back there. And I make the point that Mr. Moore is back there and Mr. Moore had looked Judge Hoyt in the eyes and made representations to him that we're not true. And so Mr. Moore is there. And he says he's there as a fact witness. I don't know what he could testify to that wouldn't be attorney-client communications or privileged. He was there because he knew that this was going to be a contempt proceeding that involved him. And he was on notice with all of the pleadings. The cases that were cited by Mr. Moore's attorneys are cases dealing with criminal contempt. For example, someone who shut up for jury duty came back to work. Their employer demoted them. The juror goes to the judge, tells the judge, the judge has the employer arrested and taken into court. They have a hearing and he's thrown in jail. Obviously, that employer had absolutely no notice. Mr. Moore's an attorney. He had plenty of notice from not only us but the court as to what we were seeking and who we were holding accountable. And Judge Hoyt repeatedly warned Mr. Moore directly, Mr. Moore, in addition to Mr. Catler, you need to comply with my orders. You have not been compliant with my orders. There was a complete lack of respect shown to Judge Hoyt in this proceeding. It's Williamson. We have your argument and thank you very much. This is Ashley. You have some time for a bottle. Thank you, Your Honor. It's important to understand that there were really two things going on with respect to the orders that were entered in December of 2012. Waste Management was concerned that their documents had been downloaded and taken by Mr. Catler when he left and going over to a competitor emerald. So there were searches done of the devices or the idea was to have searches done of the devices to determine what waste management data or documents were stored on any of the devices that were in the process. Judge Mr. Moore had, Mr. Catler, rather, had used during this time period. Then there was a separate, and so there were these procedures put in place to have searches done by forensic neutral of devices that might contain or have stored on them not only waste management data. There were a lot of research management documents that Mr. Catler had downloaded, but emerald documents that were confidential information or trade secret information of emerald that might be on there. The procedures were designed to allow the search to capture what waste management documents were there and to protect from waste management in an emerald documents. That was the confidentiality procedure and there were attorneys' eyes only ordered in to protect those types of documents. There were the other category and this is the subject that's really occupied most of the December 18 hearing. If you read the transcript itself as opposed to the orders that came out later, the concern there was that there were attorney client communications on the computer that Mr. Catler had used once he transferred to emerald. The procedure that was crafted that Ms
. Catler, you need to comply with my orders. You have not been compliant with my orders. There was a complete lack of respect shown to Judge Hoyt in this proceeding. It's Williamson. We have your argument and thank you very much. This is Ashley. You have some time for a bottle. Thank you, Your Honor. It's important to understand that there were really two things going on with respect to the orders that were entered in December of 2012. Waste Management was concerned that their documents had been downloaded and taken by Mr. Catler when he left and going over to a competitor emerald. So there were searches done of the devices or the idea was to have searches done of the devices to determine what waste management data or documents were stored on any of the devices that were in the process. Judge Mr. Moore had, Mr. Catler, rather, had used during this time period. Then there was a separate, and so there were these procedures put in place to have searches done by forensic neutral of devices that might contain or have stored on them not only waste management data. There were a lot of research management documents that Mr. Catler had downloaded, but emerald documents that were confidential information or trade secret information of emerald that might be on there. The procedures were designed to allow the search to capture what waste management documents were there and to protect from waste management in an emerald documents. That was the confidentiality procedure and there were attorneys' eyes only ordered in to protect those types of documents. There were the other category and this is the subject that's really occupied most of the December 18 hearing. If you read the transcript itself as opposed to the orders that came out later, the concern there was that there were attorney client communications on the computer that Mr. Catler had used once he transferred to emerald. The procedure that was crafted that Ms. Williams in agreed to at the December 18 hearing was to allow the neutral to search, using search terms to search those devices and then to have waste Catler's lawyers, Mr. Moore and the Bernmatered lawyers, examine and make privilege claims as to those documents. That actually gets somewhat confused and it got confused at the January 22 hearing. It ultimately gets written out at the March 5 hearing but the district court is very consistent in his rulings once he understands there is a privilege issue involved and that's what happened at the March 5 hearing with respect to the iPad. Now again, Mr. Moore, after the January 24 hearing, I mean after the January 24 meeting, he determined in consultation with a professional responsibility professor that he needed to withdraw its documented detail that he did so on January 28. He didn't withdraw, he stopped providing any legal advice. But from the worst perspective and waste management's perspective, he was still counsel record. He was but he and I understand that but if you in terms of what Mr. Moore actually did as far as providing legal advice to Catler and he didn't have any involvement in the decision. Well when the waste management people were asking for the iPad saying the image isn't sufficient, why didn't Moore say I'm no longer part of this. I mean Moore just sat back and did nothing. He's copied on those emails but the correspondence is between and the exchanges between the Bernmatered lawyers because Mr. Moore at this point can't interfere with what decisions the Bernmatered lawyers are making on Mr. Catler's behalf. And the other point I need to make a reinforce really is that the iPad image, there was no problem with the iPad image that was provided. The problem was that unless and until you could get into this recessed memory, then there was no issue as to whether there were privileged communications. One quick question now. What what was found in the recessed memory of the iPad as far as the downloaded materials or was it the case that all the downloaded materials went through this thumb drive. It's understandable. There's a thumb drive which you ultimately determined that perhaps the whole documents had been downloaded etc and whatever. But then there was one of the understandably on the side thought that maybe that also had been used to do that. They could discover what had been downloaded through the iPad and I'm not clear as to what when they actually got into the iPad what did they find. What Miss Williams and made clear is what they were looking for on the recessed memory were emails
. Williams in agreed to at the December 18 hearing was to allow the neutral to search, using search terms to search those devices and then to have waste Catler's lawyers, Mr. Moore and the Bernmatered lawyers, examine and make privilege claims as to those documents. That actually gets somewhat confused and it got confused at the January 22 hearing. It ultimately gets written out at the March 5 hearing but the district court is very consistent in his rulings once he understands there is a privilege issue involved and that's what happened at the March 5 hearing with respect to the iPad. Now again, Mr. Moore, after the January 24 hearing, I mean after the January 24 meeting, he determined in consultation with a professional responsibility professor that he needed to withdraw its documented detail that he did so on January 28. He didn't withdraw, he stopped providing any legal advice. But from the worst perspective and waste management's perspective, he was still counsel record. He was but he and I understand that but if you in terms of what Mr. Moore actually did as far as providing legal advice to Catler and he didn't have any involvement in the decision. Well when the waste management people were asking for the iPad saying the image isn't sufficient, why didn't Moore say I'm no longer part of this. I mean Moore just sat back and did nothing. He's copied on those emails but the correspondence is between and the exchanges between the Bernmatered lawyers because Mr. Moore at this point can't interfere with what decisions the Bernmatered lawyers are making on Mr. Catler's behalf. And the other point I need to make a reinforce really is that the iPad image, there was no problem with the iPad image that was provided. The problem was that unless and until you could get into this recessed memory, then there was no issue as to whether there were privileged communications. One quick question now. What what was found in the recessed memory of the iPad as far as the downloaded materials or was it the case that all the downloaded materials went through this thumb drive. It's understandable. There's a thumb drive which you ultimately determined that perhaps the whole documents had been downloaded etc and whatever. But then there was one of the understandably on the side thought that maybe that also had been used to do that. They could discover what had been downloaded through the iPad and I'm not clear as to what when they actually got into the iPad what did they find. What Miss Williams and made clear is what they were looking for on the recessed memory were emails. So what they were looking for were the emails between Mr. Catler and his counsel and then they were challenging or intended to challenge the privileged claim as to those. And this is in Mr. Perkins. That's what I'm trying to understand because the way it's being presented is that they were after the iPad to get the downloaded instrumentation. But it's a thumb drive that already surfaced as a potential culprit. And then at some point the client suddenly remembered whatever I did have one but I don't know where it is kind of like. That happens on January 24th. Right. So I just didn't know if the iPad never contained the downloaded instrumentation just contained emails. They never they were not contending if the iPad contained that information. And as Mr. Kerst made makes clear it's pages 318 to 326 of the record it's at the March 5 hearing. The software was not available to do that jailbreak procedure until he says February of 2012. So there was nothing wrong with the iPad image. So this sudden panic that counsel obfises all about is that this discovery that they were going to not try to hide it. But apparently they were never there. The material was just what happened. Okay, Mr. Esha. Thank you very much.
Okay, Mr. Ashley, you may proceed. May I please the court? Michael A. Moore appeals from the district courts March 28, 2012, order finding him in contempt. Mr. Moore was held in contempt based upon his conduct as Council for Dean Catler. Mr. Catler was the defendant in the underlying case. The underlying case involved a suit by waste management over Mr. Catler's departure from waste management and his subsequent employment with Emerald Services Inc., which was also a client of Mr. Moore's. The underlying case, actually the contempt award, found Mr. Catler in contempt and found Mr. Moore jointly and severly liable with him for the contempt and for the fee award, the $65,000 fee award that the court subsequently imposed. Mr. Catler subsequently paid the fee award in full in July of 2013. The underlying case settled in December of 2013 and we believe all indications are that that included a release of the claims, any claims that waste management had against Mr. Moore, which is the basis for our motion is missed, which is being done. I'm sorry, you moved to dismiss the appeal. What did you move to dismiss the appeal? We moved for the dismissal of waste management as a party to the appeal. You're on the basis that they had no continuing just as you go interest. But you want, obviously, you're wanting to continue your appeal. Yes, we obviously did, Your Honor. The basic points we're making are there was a lack of notice and further that there's on the record is exists now. There was no basis for the contempt finding in the first place against Mr. Moore, nor is there any basis for further contempt proceedings in the district court. With respect to notice. It's actually, you have a very strong argument on that point. I wonder what relief you really seek from us if you're asking us to send it back to the district court. But Your Honor, my point and really the second point we've argued in the brief is that you want to walk out of here, of course. But I'm thinking that you argument with the guard the notice, et cetera, but me, you resonate very strongly. But that's worth it. But then there's a suggestion that apart from the notice, if in fact after a due process type of adequate notice, et cetera, the same conduct or examine that it could sustain the, that's what contempt finding. And that's I'm very interested in what, what is that so is there anything in that matter or not? Let me address that. If we agree with you with the guard of that process, do we simply reverse our right or do we send it back? All right, let me address that, then Your Honor. The situation was that there were actually two contempt proceedings that occurred in the district court. First, a waste management filed on January 8 of 2013, a motion for an order show cause. A show cause order was issued and then there was a hearing held on January 22 before the district court. At that hearing, there was forensic evidence produced, specific forensic evidence produced for the first time, that strongly suggested that Mr. Katler had on August 28, 2012, downloaded a large volume of waste management documents using a very specific. Let's set the cruise, say, and cruise disc aside. What about the iPad? Well, the iPad, once they concluded the hearing, the January 22 hearing, and then the district court enters its order on January 23. That does not make any specific additional directions. The order does generally admonish both sides to comply with the existing orders. So with respect to the iPad, you had the December 18 order that was issued after the temporary injunction hearing. And that order, they argued at the hearing over whether that order applied to the iPad or not. And it's clear that the record is clear that the district court at the January 22 hearing determined that it did. And so the image of the iPad was specifically then ordered to be produced. And it was produced two days later on January 25, 2013. The image of the iPad was delivered to waste management. And waste management accepted that delivery and made no complaint about that in their second motion for contempt, which was filed on February 14, 2013. There was confusion, and the record is confusing over whether there was an, whether Katler's attorneys, Mr. Moore and the Bernmanger-Mainter Lawyers, were supposed to profisically produce the iPad itself. If you look at the context of that discussion in the transcript, the January 22 transcript, Ms. Williamson begins to complain that they haven't received the images of the iPad. Mr. Moore, as he responded, he does, and he says inadvertently in his declaration, use the word device instead of image of the device. And so the district court then says, Mr. Moore says that if the device was supposed, itself was supposed to be produced. As opposed to the image, then we didn't understand that. And the court then says, I think that's what my order said, referring to the December 18 order. It's clear that the court's mistaken about that. The December 18 order did not order the device itself. It ordered the image of the device. And so the concern, the concern that the Bernmanger lawyers and Mr. Moore had about producing the image of the, both the image of the device and the device itself, was that that device had been used by Mr. Katler and Mr. Moore to communicate. And so there was concern that there were privileged communications on- It was clear after the January 22 hearing that the district court thought, rightly wrongly, but by that hearing, the district court said turnovers of the physical op-pass. The district court thought that. But he said on the bench, turn it over. Well, Mr. Actually, it's the little if it's in order, it's in order that more in response to more suggestion. He says, if that's what you want, we'll produce it. And the district court said, that's what he wants. So the, but then what happens is they produce the image, waste management accepts the image. And in their, in actually their response and the second motion to for contempt, they acknowledge that they accepted that is sufficient. And, but then when they examined the iPad image, they didn't find the emails on the image that they were looking for. So they then, their forensic expert then says, this is Mr. Kirsch and this is documented in his testimony in the March 5 hearing. Says, well, we can, there's now a procedure available that would allow us to search into the recessed memory of the, of the iPad and capture emails there that nobody, no user or nobody else who didn't have the ability to hack into this recessed memory, would be able to capture. And so that then creates the controversy at the March 4 and 5 hearing what the, what judge, the district judge ends up doing is allowing Mr. Kirsch to conduct, he enters the March, a March 5 order that actually we didn't refer to in the brief, but there's a specific order that the district court entered. March 5, but the hearing that provides a procedure where Mr. Kirsch is going to do this jailbreak search. And if there are any privileged, potentially privileged communications, then those are going to be, they're going to give the burn-manored lawyers who were representing Kavr Soly at that time, the opportunity to claim privilege on those. And, and then the court will rule on it. And if you look at its pages 66 through 100 of the March 4 transcript, there's this a long discussion where the district court finally, he seems confused at first, but then he understands that there, and he accepts the concern about privilege. That is the reason that the burn-manored lawyers and Mr. Moore had resisted turning over the iPad image in the first place and were resisting turning over the iPad itself. The other point, and the critical point is that Mr. Moore, because of the conflict system that situation that developed with respect to the San Discruiser, on January 24, 2012, he meets with Mr. Katler, and there's a conflict situation that develops because Mr. Moore is representing both Emerald and the United States. And the, and Mr. Katler, he consults with a professional responsibility expert who also has given the declaration, and these declarations, of course, were sealed because there is attorney-client communications in there. But, and so they determine that Mr. Moore needs to withdraw. And so, which he does formally on the record on the 25th of February, but, and this is documented in detailed in Mr. Moore's declaration, he, he's conflicted in his representation from the 24th to the 28th. So, he withdraws from the representation or ceases providing legal advice to Mr. Katler on the 28th. He gets the burn-manored lawyers involved, and they agree to continue the representation on the 29th. So, it wasn't Mr. Moore's decision as to whether to turn over the iPad itself or not. Once waste management begins complaining about that, they're complaining to the burn-manored lawyers, and Mr. Moore does not participate in the decision on, on whether to turn over the iPad itself or not. And as I say, what, what the district judge ultimately does is he holds Mr. Moore in contempt for failing to turn over the iPad, but then validates the conduct of the burn-manored lawyers who raised the privileged problem at the hearing and, and the judge accepts those arguments. So, for those reasons, we think the notice issue requires reversal, because there clearly was no notice from the district court, but the record as supplemented with the materials we provided in our motion to vacate the contempt finding shows that there's no basis for the contempt finding that was made and no basis for further proceedings. And so, the situation in our view is the same, essentially, as it was in the Ibarra case that we decided where- Hey, Mr. Asher, your time is- The underlying case that settled in the rendition was the judgment not a remand. Okay, thank you, sir. Mr. Williams? Please, the court. Mr. Asher, he wasn't present during all of the hearings that led to the court's contempt order. I was personally involved with every one of them, every one of the motions. The addressing first, the issue of whether I on behalf of waste management should be- I should go outside the record, that shouldn't matter. Thank you, Your Honor. The addressing first, the issue of whether waste management should be here. The fliming case- Are you here? I'm sorry? You're here. I am here, Your Honor. That's about all you wanted to do is make the argument. It's not the monetary issues that I'm here about. It's to protect the integrity of the court. The- Vengeance is mine, sir. waste management. Your Honor, the- This case started off in December of 2012 and- Or 2011, excuse me- Or December of 2012. And we went to the court and informed the court and Mr. Catworth's attorneys and his lead attorney who was doing the speaking and- And talking to the court and conversing with us was Mr. Moore. And when they told the court that they had one Western digital hard drive, a personal laptop, and one thumb drive, we told them at that point in time there's more. We have more. We know there's more out there. We'll find that in the record. You're going to find it in during the December- December 6th, 2012 hearing. So you're going to find it. Well, I mean, what- But what- What you're saying then, it seems to me is that- Where you got to get through notice. If there's no notice here, you're asking for a remand. Is that what you're doing? I mean- If- If there- You got to get past that. Because it seemed to me that I mean that nobody even thought that Moore was involved in this so much as- As the- Plenty for himself. I mean- Your honor in our January 8th motion to show cause. Repeatedly, we stated that it was Mr. Catler and his attorneys who had engaged- Pletings are not sufficient notice. We have set out for good reason to bright clear rules about what courts must- Jumps they got to make in order to decide a lawyer for content. And those are just weren't complied with here. And your pletings don't get it. You got- The notice given- The notice is missing conspicuously when you do get notice, You give it precisely to the individual defendant himself and not to the lawyer. Your honor in the- The visor of this case in American Airlines, the court stated that- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- I was- In that adequate notice given what precisely did this lawyer himself do as extinguish to his client? How that sustains his content for him? His client testified that he had given the- The iPad, starting with the iPad- To the attorneys at the beginning of December of 2012, In the December 20th order of Judge Void, He orders them to produce within two days of that order- An image or the original. of the devices that Mr. Catler used was live first of 2012 that were not provided to him by Emerald. It's current important. When we filed the motion to show cause on January 8, we attached the correspondence with Mr. Moore, where we repeatedly remind him and ask him to comply with that court's order. They, Mr. Moore, continues to take the position that it is an Emerald device, even though that device was provided to Mr. Catler by Ways Management. We then, for that reason and other reasons, have the show cause hearing in December 2013. The, our pad was produced. After two court orders were violated and by months, your honor, by months, the, the first, the December 20, and said an original or a copy within two days, we got neither within two days. We didn't get anything until the end of January, which was an image and that was after Judge Hoyt ordered them to produce the original. We were exhausted by that point, dealing with them because we had been, it's reflected in Judge Hoyt's order, the run around on a cell phone, the thumb drives, and the iPad. And if you read the correspondence between Council to attach these motions, it's between Mr. Moore and my office or me, where they will not give us a direct answer. So we take the image, which they know doesn't provide us with, with, with the emails. And they know that because they had a forensic expert look at it before, we got it. And so they finally give us the image, but apples, the way the apple has its technology set up, you have to what, what's called a jailbreak to get behind that. When was the last correspondence with Moore about the iPad? I believe it was in January or early February of 2013, Your Honor. Where is it in the record? It's in the record, Your Honor. I understand where. I mean, is it exhibit to the hearings? Yes, Your Honor. It's exhibits to our motions for, to show cause and motion for reconsideration. In addition, our motions, the, each of those motions were also motions to compile. Mr. Moore had custody and control of that iPad. And Mr. Moore made the decision not to reduce it. The orders are very clear. There's nothing ambiguous about those orders. And, and he, when he told the court in January, January 20th hearing that, oh, if I was mistaken, if I misconstrued your order, under oath, I apologize, and I will happily give that to them, you know, the next day. Well, a few days later, we get an image, but we don't get the original. At that point, we didn't know that an image was no good. Usually an image of an electronic device is good enough. And then once we realized that we had to have the device itself, we went back and said, in Judge Hoyt, what did you to give us the device? Now, give it to us. And Mr. Moore was still counsel for Mr. Katler at that point. You initially accepted the images as being sufficient to fly out of the order. I'm sorry, Your Honor? You initially thought, accepted the, the images that you got as compliance with the order. Because you thought they're going to give you what you wanted. And then you, they didn't give you what you wanted, then you came back. We didn't necessarily believe it was a compliance with the order, but if it would give us what we needed, we weren't going to go back and pass to Judge Hoyt on something that didn't matter. If the image was the same as the original, we weren't going to go back to Judge Hoyt and complain. But once we realized that the image was not the same as the original, we said, okay, Judge Hoyt, we should have had the image over a month ago according to Judge Hoyt's December 20th order. Or did you go back to the lawyer and say, wait, but these images are not going to show us the emails. And then bring it, we want the, the, the, the, the, the. Yes, Your Honor. And Mr. Moore was copied on all those emails. He was copied on all of the pleadings, all of the motions. He was on all of them, whether he weighed in later on or not. He was on all of them. When did you all realize he was no longer representing, when did the context switch from Moore to Baron Maynard? When did we cease communicating with Mr. Moore? Yes, on behalf of the defendant individually. After he moved with draw on February 25th. So did he respond anything in the meantime on behalf of? I believe that he did respond to a few emails, but he was leaving it to Baron Maynard and Parsons. Of course, we're not aware of the, you know, the gymnastics that's going on behind the scenes with the lawyers. They're all still representing Mr. Katler. And Mr. Moore has, was the one who told Judge Hoyt will happen to be the one who told Judge Hoyt that he will not be able to fully produce the device tomorrow. If I misconstrease your order under oath, I'm very sorry. And so he's in all of these emails, you know, copied on all these emails, he's copied on the petition. There may be a few times that he's responded. We noticed that we're getting more. Is there any evidence he knew when he gave me the image that he knew it was incomplete? Well, your honor, he's getting the emails from us saying it's incomplete. We need the original. And that original was in Seattle at that point, where Mr. Moore is located. At some point, Seattle ships it to Houston, to the Baron Maynard lawyers, and the next to us. I'm losing the thread here. I thought you said he thought Penn was turned over the lawyers in December. It was turned over to the lawyers in December, and they gave it to Forensics expert in Seattle. So they were the ones who gave it to that Forensics expert in Seattle, and she held it, but they had custody and control, as evidenced by when they wanted it shipped to Houston without consulting with us, and that's in the record. Without consulting with us, she shipped it to Houston to Bermaynard and Parsons. And so they had custody and control over that iPad the whole time, and we couldn't get them to comply. Baron Maynard wasn't held in contempt for withholding the iPad. You're right, Your Honor, but Judge Hoyt does mention in his order that the attorney's plural failed to comply with his orders. But it was Mr. Moore, who was standing before Judge Hoyt, and as I said to Judge Hoyt at one point, he looked straight in the eyes. He looked straight in the eyes and said, there is no thumb drive out there. Well, forget the thumb drive. I mean, I'm trying to separate that from the iPad for the moment. What I mean, why is it that Mr. Moore should be in contempt and not Baron Maynard over the iPad? Mr. Moore was the one making the representations to Judge Hoyt, for example, when he made the representation, we thought it was an Emerald device. There's no way it could be an Emerald device. It had waste management sticker on it when they finally produced it. Mr. Moore had seen the device. Mr. Moore knew that it was a device. You got everything you needed, and that you weren't happy with. It took you too much trouble to do it. And the result of this is this lawyer, what was the contempt award up to $75,000? $85,000 plus. Yeah, well, that plus took you to $70,000, something thousand dollars, I saw the recall. And the lawyer who had withdrawn from the litigation. When were notices, you know, if you thought he was a real culprit, you shouldn't give the notices and that they were formally filed. So it strikes me as an extraordinary outcome of what I regard as a standard discovery fight that goes on litigation. And it struck me that the lawyer was first of all, you want to talk about that drive a lot, but the lawyer made the representation, it's client late. And then when the client backed off of that, the friends it came in and then the lawyer went through. So I'm not clear what's going on here, rather than what's the point of all this. You're on that had to do the thumb drive. Mr. Moore had control over that iPad the whole time. He was the one who refused to produce the edge in response to judge hoids to December 20th order. He's the one who refused to produce the iPad itself after the January 20th hearing. So it was Mr. Moore who was in control. That iPad was in Seattle. It wasn't in Houston for a minute in Parsons. When you read and I'm sure you've already read some of that. If you got in the iPad there, you wouldn't have gotten this up anyway because the images didn't disclose it. Unless you've been using this application that you didn't get too much later. So I mean, I... In other words, they gave you the images and at that point, there's nothing to suggest. That no one thought that you would... That wouldn't be an accurate reflection of what's there on that you could go further with it. Yes, your answer is. Because when they gave us the image, they weren't panicking about the attorney client communications. It was only when we went back to them and said, by the way, we aren't getting anything. Actually, what was on there were some emails between a landscaper and people that we'd never heard of and some pictures. And that's only the only thing we could get. So when we go back and we say, wait a minute. Apple's technology is such that we're going to have to do this procedure called job work. That's when they panicked. They tried to start getting all this discovery because they said, we need to know what he took. And Judge Hoyt kept saying Mr. Catler knows what he used to take the data. It doesn't need discovery to tell him what he took. And so they... They were trying to get discovery. And that's when they seek clarification, not of Judge Hoyt's order with respect to producing the device, but with respect to discovery. They never sought clarification or modification or stay on any of his orders, never. And so they're claiming, well, attorney client privilege. Well, if that were really what was driving them from the get go, they could have moved for clarification, modification. The only time they raised the attorney client privilege issue before. Well, if you... If they give the outfit and they don't think that you can look at it, the longer it is, there are no communication that images are not there. I mean, then you... Then when you tell them, no, there is a technology for going behind that and finding. And when if you go... if you go and get that, well, then we need to know about the attorney client privilege. What's untoward about that? You suggested, I guess, that they were... It's suggesting that the lawyer was participating in the actual destruction of evidence. If I read what you're saying. I, your honor, I'm not suggesting I'm saying that the... Mr. Moore was part and parcel of the refusal to comply with Judge Hoyt's orders. We were communicating with Mr. Moore about getting the image pursuant to the December 20th order. And Mr. Moore, even though he had custody and control of that iPad, wouldn't... wouldn't provide it. He kept calling it an enrolled device when it clearly wasn't. How long have you got the iPad after that point? How much time left? We didn't get the iPad until March 5th. And that was from Mark's field. When was this... He's going to reduce the iPad initially. The Judge ordered them to physically produce the iPad on January 20th. And you got it in March. March 5th after much effort. And having... that was during the hearing. On March 4th, we're at the hearing. Judge Hoyt is understandably exasperated, upset. And... Judge's order... say iPad? It describes... well, his order on January 20th from the bench says the iPad. Produced them the iPad. You should have already given it to them. Give it to them. Mr. Moore agrees and says, misconstrued under oath. I'll happily give it to him tomorrow. But there is an oral statement of the judge. We found it in a transcript. Already the end or written the order. It's in the transcripture honor. And then he follows it up with a written order that says that the parties will comply with his orders that are issued from the bench or as written. And is written, I guess. And so he follows up on a written order that solidifies his order from the bench. He tells him, Mr. Moore agrees. He's going to do it. And so our... And Judge Hoyt, during that January 20th hearing, tells Mr. Moore and Mr. Katler, this is not a slap on the hand if you guys are hiding evidence and not complying with my orders. This is like gel incarceration sort of stuff. So you need to kind of get with the program and comply with my orders. Each hearing, Judge Hoyt, is warning Mr. Moore and Mr. Katler. But Mr. Moore and Mr. Katler, not the Bernmanger lawyers who are sitting at the table. Mr. Moore is up there talking to Judge Hoyt and telling him what he misunderstood or what he was going to do and what he didn't do. And Judge Hoyt says during the March 4th hearing with Mr. Moore who was present in the courtroom, Mr. Moore was present. He says to the Bernmanger lawyers, you are the lawyers that have been making these misrepresentations to me. And he says, you know, basically it's the one back there. And I make the point that Mr. Moore is back there and Mr. Moore had looked Judge Hoyt in the eyes and made representations to him that we're not true. And so Mr. Moore is there. And he says he's there as a fact witness. I don't know what he could testify to that wouldn't be attorney-client communications or privileged. He was there because he knew that this was going to be a contempt proceeding that involved him. And he was on notice with all of the pleadings. The cases that were cited by Mr. Moore's attorneys are cases dealing with criminal contempt. For example, someone who shut up for jury duty came back to work. Their employer demoted them. The juror goes to the judge, tells the judge, the judge has the employer arrested and taken into court. They have a hearing and he's thrown in jail. Obviously, that employer had absolutely no notice. Mr. Moore's an attorney. He had plenty of notice from not only us but the court as to what we were seeking and who we were holding accountable. And Judge Hoyt repeatedly warned Mr. Moore directly, Mr. Moore, in addition to Mr. Catler, you need to comply with my orders. You have not been compliant with my orders. There was a complete lack of respect shown to Judge Hoyt in this proceeding. It's Williamson. We have your argument and thank you very much. This is Ashley. You have some time for a bottle. Thank you, Your Honor. It's important to understand that there were really two things going on with respect to the orders that were entered in December of 2012. Waste Management was concerned that their documents had been downloaded and taken by Mr. Catler when he left and going over to a competitor emerald. So there were searches done of the devices or the idea was to have searches done of the devices to determine what waste management data or documents were stored on any of the devices that were in the process. Judge Mr. Moore had, Mr. Catler, rather, had used during this time period. Then there was a separate, and so there were these procedures put in place to have searches done by forensic neutral of devices that might contain or have stored on them not only waste management data. There were a lot of research management documents that Mr. Catler had downloaded, but emerald documents that were confidential information or trade secret information of emerald that might be on there. The procedures were designed to allow the search to capture what waste management documents were there and to protect from waste management in an emerald documents. That was the confidentiality procedure and there were attorneys' eyes only ordered in to protect those types of documents. There were the other category and this is the subject that's really occupied most of the December 18 hearing. If you read the transcript itself as opposed to the orders that came out later, the concern there was that there were attorney client communications on the computer that Mr. Catler had used once he transferred to emerald. The procedure that was crafted that Ms. Williams in agreed to at the December 18 hearing was to allow the neutral to search, using search terms to search those devices and then to have waste Catler's lawyers, Mr. Moore and the Bernmatered lawyers, examine and make privilege claims as to those documents. That actually gets somewhat confused and it got confused at the January 22 hearing. It ultimately gets written out at the March 5 hearing but the district court is very consistent in his rulings once he understands there is a privilege issue involved and that's what happened at the March 5 hearing with respect to the iPad. Now again, Mr. Moore, after the January 24 hearing, I mean after the January 24 meeting, he determined in consultation with a professional responsibility professor that he needed to withdraw its documented detail that he did so on January 28. He didn't withdraw, he stopped providing any legal advice. But from the worst perspective and waste management's perspective, he was still counsel record. He was but he and I understand that but if you in terms of what Mr. Moore actually did as far as providing legal advice to Catler and he didn't have any involvement in the decision. Well when the waste management people were asking for the iPad saying the image isn't sufficient, why didn't Moore say I'm no longer part of this. I mean Moore just sat back and did nothing. He's copied on those emails but the correspondence is between and the exchanges between the Bernmatered lawyers because Mr. Moore at this point can't interfere with what decisions the Bernmatered lawyers are making on Mr. Catler's behalf. And the other point I need to make a reinforce really is that the iPad image, there was no problem with the iPad image that was provided. The problem was that unless and until you could get into this recessed memory, then there was no issue as to whether there were privileged communications. One quick question now. What what was found in the recessed memory of the iPad as far as the downloaded materials or was it the case that all the downloaded materials went through this thumb drive. It's understandable. There's a thumb drive which you ultimately determined that perhaps the whole documents had been downloaded etc and whatever. But then there was one of the understandably on the side thought that maybe that also had been used to do that. They could discover what had been downloaded through the iPad and I'm not clear as to what when they actually got into the iPad what did they find. What Miss Williams and made clear is what they were looking for on the recessed memory were emails. So what they were looking for were the emails between Mr. Catler and his counsel and then they were challenging or intended to challenge the privileged claim as to those. And this is in Mr. Perkins. That's what I'm trying to understand because the way it's being presented is that they were after the iPad to get the downloaded instrumentation. But it's a thumb drive that already surfaced as a potential culprit. And then at some point the client suddenly remembered whatever I did have one but I don't know where it is kind of like. That happens on January 24th. Right. So I just didn't know if the iPad never contained the downloaded instrumentation just contained emails. They never they were not contending if the iPad contained that information. And as Mr. Kerst made makes clear it's pages 318 to 326 of the record it's at the March 5 hearing. The software was not available to do that jailbreak procedure until he says February of 2012. So there was nothing wrong with the iPad image. So this sudden panic that counsel obfises all about is that this discovery that they were going to not try to hide it. But apparently they were never there. The material was just what happened. Okay, Mr. Esha. Thank you very much