six cases two of them are being submitted just on the brief without oral argument later today they are appeal number zero six tash thirty one zero two french versus merit system protection board and appeal zero six thirty one ninety morning welcome please proceed decisions comply both with the generally political procedural rules and with this court substitute what's the difference between the standard you say ought to be used on the one the ninth circuit uses i'm not saying that the  good cause standard or the abuse of discretion standard applies to me in cases that it does in any other case decided by a federal district court what i am saying is that decisions about good cause and about exercising discretion must be informed support of the micros motion now there's i don't think there's any dispute that two didn't know the facts necessary to serve openly theory as of the time that the final infringement contentions were due in january  district court read that to micro didn't have the facts necessary to assert that theory until the wired up position five weeks after that deadline in february twenty fourth and twenty fifth to two thousand and three when what about the delay between february and may or june if we rely on the formal submission of alternate infringement contentions had and what did the affidavits do by way of explaining some justification for that delay of several months went out that i mean in a sense new infringement theories are not built overnight the mere fact that when your deposition for the first time explains how he openly feedback circuit work does not mean that there's a button that's pushed on the word processor allege by way of explanation week by week or month by month from the day of them or your deposition to the day that there were the final submission of an altered infringement contention the declarations pointed out that between the time of the wire deposition or over thirty other depositions in the case there was the normal motions practice going on there were in fact three there are other depositions so i don't i don't doubt that the lawyers are very busy but it seems to me that that doesn't really address the issue that the issue was the development of the open lamp theory now you suggested a minute ago that one of the things that the lawyers need to do once they had the more your deposition results was to go back to the expert and run it by him that sounds logical enough but my question is whether the affidavits account for the time because that's quite a delay from february twenty third i think it was and until late may seventy nine which it addresses some of the things that were going on during that time back there's an earlier declaration was more up to nine fifty two to nine fifty five  the point is what's reasonable under the circumstances when the party believes at the end of discovery that there's going to be amendments based on the things that are innocent discussed stated by discovery now when yes he you you may have a point that general business with daily depositions or some very high level of activity like that is part of the background facts that any adjudicator would have to give some weight to to meet the test which sounds reasonable of what's reason on the circumstances but can you help us understand exactly who had to do what to develop the more your statement of february twenty third into a new infringement  conceding that general business should be counted can you help us to understand what had to be done to develop the more your deposition into a file  infringement contention well under the affidavit you know not right i mean yesterday that's i took her own room but in this case but respect to what was happening there's no there's no concrete evidence these infringement there for contentions were followed when they were punished and assuming that the fact that it took them a couple wants as long as there was continual effort going on during that period of time and it was reason one of the circumstances that's diligence it doesn't have a declaration so there was continual effort going on during the two months to develop this there the declaration does not say that you know exactly word for word i think that the only those that say it a it says that there was a lot of activity going on but it does not say that directly but i believe under the the only declaration that are in evidence the only thing on the other side is eternity or i believe it would be clear it would be certainly you burden your side to show dillard's and so the fact that there were x y and z affidavits that were totally unreal but it doesn't seem to produce the result that the affidavits either show diligence or don't and the fact that they were under a budget doesn't give them content they don't have some say they only say what they say and we can read them closely and we will buy it but the fact that they based on their own farce the fact that it took us two months to develop the theory and when i say months it's only chloral sense of ninety days i believe that showed by the statements from both sides that was reasonable under the circumstances when the facts t may or june but in the in the declarations when you talk about lack of diligence you reference seven day and i guess the lack of diligence for seven day period your accounting from the time you found  at the close of that is reason one of the circumstances and that's the definition see you understand the final ruling by the magistrate judge to rest entirely on the lay as distinct from prejudice to the other final five i thought that what i'm trying to understand is whether that final or later decision by the magistrate judge in effect abandoned as a rationale for harmful impact on the other side unfair prejudice to the reconsideration decision didn't rely on that and it's our point here today that diligence or because standard turns on the movement's diligence and prejudice is not a factor to be considered that if there was diligence the fact that it requires the other side to respond or might cause them to lose it's not nice friends and it was let me ask you this question is it the common practice if you know the extent you know in cases litigated in the northern district of california very detailed rules for the schedule of discovery particularly of depositions to be totally out of sync with the schedule for the filing of final finalize their contentions on both infringement and liberty just because they have a marksman ruling in hand and they've had thirty days to do whatever else they need to do it seems like in a lot of cases that wouldn't be so if for example if if the infringement is by a process that goes on and factory and accused infringer you can't go out and buy the product and see you know how the widget works and that make a conclusion about infringement and at least some cases it seems like you you wouldn't even have the beginning of fully developed infringement or validity contentions until after discovery because the nature in operation the q product or process might be unknown to at least one of the party so it's i'm just surprised that the schedule of  discovery and contentions which in part depend on facts are so disconnected but it's the common schedule after well that's why i'm back to my original premise why it's important that the good car standard be properly applied and that this court recognize there is a distinction between requiring early claim construction to control the remainder of the living geishas so the parties know what the claim construction is and the fact that contentions be the inability or infringement is dependent on discovery both in result here as i recall it was that the infringement complaint was thrown out without any assessment of the merits because of this history that we've been discussing wouldn't the decision to throw it out the standard of discretion is narrow and the court of required to both consider lesser sanctions apply a lesser sanction and time to do that so in this context it's a summary judgment should be vacated because of the underlying rulings on the accurate to the extent the district court went on and said even if i consider the declarations that were attached to the district court ruling or to see declaration which is what was called the sense theory that is if sense theory should have been in that case then that declaration should have been the case in the summary judgment vacated for thing reason to the extent you go beyond that and look at the merits of the declarations once again the only directions in the case are those that explain why the sense theory for the ice in syria just a change in units and that should have been sufficient to defeat summary judgment if it had been accepted on the on the face of the declaration of the steps the court went beyond the evidentiary ruling and said you know no evidence you lose but even if i consider your evidence it's directed to a wrong theory that's an independent grounds for why that summary judgment was incorrect but on this question of the supplemental expert declarations what was the showing diligence with respect to that we've asked to all questions about diligence may twenty seventh when the dispute arose over whether the openly general why not solve the problem as it wasn't in the initial expert report what is the shelling has to why it wasn't in there and why it was diligent to submit it a couple months later  it was there there there wasn't an explanation for why i was in there other than the decoration of dr erickson that said i wanted it because i believe that the open lamp theory was the one that was going to proceed on a trial i don't know trial and therefore i sense it was a premature dropping of it not realizing you're not dreaming the fact that this wouldn't be a good cause to allow an amendment to the open land theory based on the fact that the information was determined in discovery after the deadline in january for contentions and the explanation once it was realized that's probably they tried to put that and the decorations in support of the summary judgment in a sense are the contents of dark character text or that would have been supplemented with the i since theory based on the information once again were after never responded to isn't that non diligence on its face when the council then goes ahead and relies on infringement contentions being subject to all ration to the point of telling the expert don't even bother with the original theory of infringed because we were about to change it and yet she hadn't accepted the offer is that lack of diligence on the face of things no because the put the proposal to exchange amended refrige what the contentions contain the negotiations back and forth between the parties that happens oftentimes in litigation in terms of their trying to put the idea was we are going to come to a conclusion and come to a stipulation by the end of the r that it wanted to change infringement contentions and it would stipulate that both sides could i thought that's what the offer was there was the offer was and that offer was never accepted was it the parties were negotiating over what the scope of the amended conventions would be and i'm not here saying that there was a binding agreement that both parties reached that should have been forced as a contract but all i'm saying is in that context a reasonable is by which the dil it should be examined but up until the time that m p s revealed that they were going to stipulate the belief was and i think it's a reasonable good faith belief was that there was going to be a stipulation it would take care of the need for having to make a she had a deal in her pocket it was a reliable deal she could bank on week after week month after month based on what i graded on a forcible stipulation of your primary or even follow up communications after the initial offer that would give a lawyer reason to think i can rely on this this is a solid understanding between me and the opposing lawyer that  gather and that was the first time a voice we have fourteen that said we don't need a man therefore we're not a member but then for a month oh two floor was assuming that there was a reliable deal in the absence of any confirmation from the other side that there was still a reliable deal but there it is but the development of the theory in coming up with the zero two infringement theory was still ongoing during that period the fact that it was more difficult in the senate having a stipulation that required a contested the standard northern district you require good cause to amend final contentions and here's the reason the final contentions or final contentious third are you could you can say their final and you have to be right because the rules call them final but if they're only based on a marksman ruling before most of the discovery is occurred it's meaningless to call them final they are distinctly not final except in the simplest case involving a screwdriver or something like that that even i could understand no your honor they're supposed to be taking discovery of infringement all or there are also disclosures by the defendant even if i'm taking discovery all along once the mark when ruling comes down then i've got thirty days to quote finalize my infringement contention even though we agreed that i've got another four months of depositions to do how in that context how can the contentions be final in any meaningful sense while your honor first of all the final contentions are what what the magistrate judge said was they were on notice no later than the twenty fifth of february when she didn't directly address whether they were diligent getting to the twenty fifth but let's turn to the point after the twenty fifth at that point you know that under the local rule theory but it needs a lot of vetting before it can be responsible filed with the court then i shouldn't act the next day by making a filing on maybe wasting everybody's time what i'm going to say that i might want to later i'm in contentions but i don't know yet because just yesterday dr dyke said so and so i'm trying to figure out what that means and i've got a question a bunch of more people and get my expert back on the act and all that i mean it just doesn't seem reasonable to  beyond which it was just irresponsible and lazy and dumb to not have told the court that you've got a new contention i believe that during the months of torture able when the parties were discussing the possibility of amending contentions at that point think a premature announcement that one might want to alter infringement contentions as finally stated the previous january until there's been a vetting of whether that  alteration is going to actually occur or not and we have not contended that the move needed to move on the twenty sixth but your honor what's your contention as to when they should have done what would have been the house saw limited terms of diligence  i think mid march that's enough time for their expert to ever analyze the schematics they have the data sheet they knew how he openly or circuitry worked he only included two paragraphs in his actual ultimate proposed intentions and expert words so this was not something that should have taken forever to do moreover your argument take forever it took about two months right at that time so i i think i don't understand your answer to judge by question  your your honor i believe at that point when you did that when did they know everything they needed to know and have had enough time to develop it and therefore any day after that was undue delay what's that date and what do you base it off i believe that date was no later than middle of march but and that's where you need to go to the court and get either you or you go in with also order forcing the court prevent abuses in the in this rare circumstance that both lawyers are acting reasonably of course in the end the court has to control it and manage it but on the other hand it seems like it's in the interest of the law to have cases carefully developed as and for new learning coming from discovery to be woven into the legal aspects of the case like infringement and validity contentions and if the result is there has to be a new round of discovery or there has to be a new trial the why is that so terrible why isn't that what ought to happen in such a circumstance the local rules require it you are diligent in developing and disclosing your theory and that not being unduly prejudicial to the earth side in this case we were a year and a half into the case all operating under the isotopes theory nobody had a clue or to be assigned that they were going with the open their theory this was a  change in the critical limitation of the pact this is the limitation we added in order to get it issued first place so we were going to go back to square one they knew no later than february twenty fifth but they were not going to be able to evidence to feel like you were required to put on and you know and as to what would have been diligence under the circumstance no i believe their burden was to come forward with evidence that baby diligently developing disclosed theory and they failed to meet that burden it wasn't our was a major change in the theory and then it would require going back to square one in the case could that be i mean if yours if all the happened here was that there was a months the way you say mid march would have been reasonable and what why why is this month's the way a terrible thing because they disclosed this on the eve of a morally weak and the day before expert report was due there was no way for us to pro discretionary standard she would have been registered you would have what you're saying is you would have been prejudiced if the judge didn't give you any more time which you wouldn't amend prejudice of the judge did give you some more time we did not state that it would be impossible if we were given three or four months here's what would have happened we would have developed invalidity contention step responding to the in principle contentions to would have been taken some discovery regarding our inability contentions the whole schedule would have been out the window so what the litigation a supposed to get the right result not discovery or the further expert reports or a delay due date of an expert report all those things can and should then be allowed but the northern district makes very clear it's what was in the case law under the rules but you've got to be diligent you district court's opinion is that he did this in large part by me not exclusively because he viewed the the sense in the i sense theories as being different correct that's correct and so what he said even though all erickson alpine that they were the same what the judge says is that the sense they're reading i sense gary expressed different ideas and then the only basis for that is his one makes the only of comparison in terms of units of current and the other in terms of units of voltage and i look in your brief for some a defense of that ruling and now maybe i missed this but i didn't see any defense of that and i looked at the infringement contentions and to the extent that i can understand this i don't think what the district court said was correct it seemed to me that the i sense the erie was also in terms of units of voltage is there is there first of all is there court ruled i'm asking you specifically did you defend that finding that the district court made in that one sentence i think we've explained that maybe it's slightly simpler report it turned on in the situation of overlap that was the only time which the change in control from the second signal of how understand all that but the the judge doesn't seem to me i understand what you're saying but the judge doesn't seem to based his ruling on that he seems to have based his ruling on a mistake and a mistaken apprehension that one is in terms of current and the other is in terms of voltage isn't that  correct i think the district it would have been nicer to court explain her reasoning a little bit more detail however i do think the fundamental ruling was correct and your honor review judgements not necessarily the one sentence that she used to explain why she made a mistake as the basis for finding the difference which appears to be the case then don't we have to say well there may be other differences here which would justify a ruling but the basis that you gave isn't correct and you've got to go back and re i sense measures current it is a little bit more complicated than that however the justification for that was explained very well at the warning and in the briefs and the fact that she had one sentence explaining in shorthand the difference between the two theories that requires a little more explanation i don't think it's grounds for a virtual the question is whether the ruling was to abuse of discretion and that's ultimately the question here it's an evidentiary ruling that the round figure be sense doesn't fit into the square hole license and i'm on that i think she was absolutely correct  certainly didn't abuse her discretion why isn't the alternative for some utility not necessarily to reverse but perhaps to vacate and room man and ask judge wilkins to really assess the issue without relying on her plainly mistaken sense of the electricity here i don't believe that she was speaking about the waitress to be but if your honour's believe she she had a misapprehension about that there is within your discretion to do that of course i don't think it's necessary or appropriate to do that here because it's very plain that the v six theory is not the same as  isis theory i ask your honour's just to look at the erickson report of a twenty to twenty seven to twenty eight where the final contentions a thirty one ninety two they are simply not even a global we shouldn't be trying this case here we have no idea and not of any concern to us with the merits or maybe the right answer is a summary judgment of no infringement i would know what the right answer is but the question is whether the process here has  new evidence came in based on subsequently discovered or the new theory came in based on subsequently discovered evidence the district courts focus was how the school gifted says opposed to how best to accommodate you and that's why the sanction roland here because the idea here should be how to best accommodate these theories so that you can further affirm the federal policy of deciding cases on the merits where there is a good cause the court schedule should be the ones that making sure that the other side has sufficient time to respond to any new theories well what about my conversation with mr packard bell about this sentence whom the judge's ruling did you hear that i did and i'll leave  that is that correct that the district court made an error there i believe the district court overruled them fly in terms of not recognizing that the i sense and the sense theories were based on the same thing both i sense and the sensor measure in terms of oldish now the key point here is there are no declarations in opposition to the summary judgment dealing with the b sense theory and the comparison of i mean this is just one more error terms of having the contentions be the end all be all this case because that declarations are what the experts would have been on the high since theory and the fact that there's changes in wording for their development based on the discovery with respect to that those declarations one should have been accepted because they were  movements declarations but they do explain in detail why the i sense and the sense theory are the same thing and that is the determination that should be done on the merits and therefore i think this case should be remitted to allow both the open land and the eye since there is to be developed and decided