most of what was going on in this case and this is not a case just failure to produce a thirty seven motion for sanctions for discovery this is a course of conduct in which proceedings go on and instead of following the motion and except in the gore peeling that she files another auction and then she keep it secret and the same thing happened on the last action was file the court dismissed in the mall allow an amendment she disagreed we guarded that and bob aforethought and then the court concluded that all the discovery was and motions would have to be redone in this case she never signed her deposition in the form but then imposed inconsistent decoration of fifty some pages which makes the deposition essentially useless for considering any motions for summary judgment and then there's a she constantly talked about making judgments about what was needed by the other side in discovery and there's some suggestion that it could be thousands of documents that she has not produced and documents appear later that were requested earlier this is not a discrete case where somebody says i refuse to produce i don't show up or i won't answer the iraq authority a motion this is a goes to the heart of the whole process and on top with the court said without all these boycotts she doesn't have a case she was basically fired or not performing as a nurse and putting in harm's way some patien and she said oh the doctor said i was doing fine well every single doctor that she alluded to said just the opposite so the court basically seeing this case as a punitive action or actions forum in which the rules are are abused where the court concluded that all the discovery in the motions would have to be redone we're talking about i don't know how many hours of attorneys time but i must say i have i've been in litigation for a long time and i've never seen the use of the process and the rules like this one and then of course the court was terribly distressed by the fact that she was unwilling to accept a court reporter and said the court reporter was substituting other people's words i don't speak that way i didn't say this and of course this tape and she says it's been doctored oh yes there are how do you handle this is a judge four lawsuit and at least two of them are in explicit disregard for the court's orders well first if i may address this kings in particular the one that is the primary focus of today's action which is out  important that we know it's going to be use it's the abuse of filing another lawsuit filing for lawsuits that invoke the process of the court but but unfortunately what's not addressed properly by hundred all out i'm directing her to answer the questions and signed the deposition and she pays for it all and that actually did happen in the case in the circuit i understand but that doesn't address the problem but it will that's just it would not if you were found that that was all we do not have to redo the motions process you have how many years of court time yes but that is the exact scenario that's presented in so many cases like mine or this same circuit time and time again and yet this court has continued to hold that still without giving that prior warning without giving that opportunity to rectify the wrongs that the ultimate sanction of dismissal is an abuse of discretion and we find that can i ask you to talk about these morning cases yes i have a theory and tell me if i'm right about this chart i feel like there's a set of cases the clear rule is that you can't use this ultimate sanction without bad faith and there's a set of cases where some misconduct happens and it's not really clear that it's bad  rather than inadvertence or inability like someone doesn't show up for a deposition or there's been a problem in discovery and in those cases the warning is necessary because until there's been a warning and a chance to get your act together you can't be sure this is but in this case i'm not really seeing the need to confirm that there's bad faith going on here and once you have the bad faith you still need notice and an opportunity to be heard for sure but that's different from this whole kind of warning second chance then yeah i asked leave the key documents and showing up later with those documents she said she produced everything and then come back later and three documents that a key in the case and she referred to were not produced and they show up i mean that these these things are not there manipulation they're bad faith how come for all shoot why bypass in the court why disagreeing with the court why if i continue this case this woman will will be in compliance well i can assure you that i mean that's sort of the seam another way of saying she's doing it on purpose and i can't make it stop we were not counsel at the trial court level but i have not experienced that same behavior with my client thus far during representation i believe that perhaps there were some mis guided that you may think that the district court was wrong but i'm saying there is a finding that she'll do it again and that seems pretty close to a finding of ba findings that these are really just embellishments that they really didn't have much bearing on the case whatsoever so that if that is in fact the issue before the court this  harm that the court found was that she testified inductors ition and then in her rada she she changed the substantive testimony and came up with a different answer and then as we line on that to  pose a summary judgment motion and and the court gave several examples of that it seems to me and then to basically say what i said there i didn't say it's been doctored by the court reporter but that isn't what the court finds specifically at the joint appendix page forty eight that the court states and i quote while the plaintiffs proposed changes were not fundamentally changed the substance of that testimony referring to her deposition the actual substance of her proposed changes does not seriously trouble the court so that was what the court found with regards to the erotic sheet so again no substantive changes that is not what's at issue she was fully within her  but you still your client still bears that responsibility i don't think it goes well to take individual examples and say there's an answer to each one or none of that example doesn't justify throwing the case which you have is a total dysfunctional case where the rules of procedure are put in place to create an orderly litigation and they were not followed almost in the case and the fact is they had that reduce everything's gone you only have the same case how many more cases will she file in other words the court throws up mouth or makes a ruling and she goes right around your honor the dismissal of the prior cases and the refiling the prior cases were dismissed without prejudice it was apparently and i can't speak i have to defer to the record because i again was not trial counsel but it seemed a tactical maneuver and not one that would be taken by my client personally but one that would be a d and guided by the attorney so there was some misguidance again by prior counsel and i believe that a lot of what we're dealing with here goes to one of the first of the two schaefer factors and that is the blameworthiness of the individual client herself who was represented this entire time and yet we're finding these very procedural regularities occurring back to judge hires and also milieu rates unfairly us and of course her decorations and various expressions from our own point of view and that was at the eleventh hour and that was all prior to any mission to strike with the mission for sanctions there again about the possibility of default before entering such a harsh sanctions a party is entitle to be made aware of the drastic consequences of failing to meet the court's conditions at the time the conditions are imposed this is imperative when he still has the opportunity to satisfy the conditions and avoid the sanctions right and that judge supposed to do yearly at the time of the deposition say by the way if you come to me with a made up obviously false accusation that the person videotaping your deposition and has altered it to make you talk in a way you don't talk i will sanction you and i just don't understand at what point the warning should have been issued here on your theory on my theory it would be based upon the mission to strike at that point in time that's when all of this is really becoming an issue she has submitted the erotic system that at the declaration the declaration is also addressed by the court used in turn we strike the motion deposition and they deposition so now what are we going to do what's the what's the other council going to do how they are going to cross examine how are they going to rely on anything when there are inconsistences well your honor i think that if we look at the procedures taken use the scupper that was was it close to discovery was closed what not discovery was classroom yeah and all of a sudden we start seeing new stuff come in we don't know what deposition to rely on she says oh i didn't say that that's my  to comply with roll twenty six to supplement discovery but time and time again maybe even after the district court says this after the motion for sanction has been filed in the district where it says this raise serious issues i'm going to suspend everything until we can address this i mean that's a warning and after that she's still coming back saying i want to be really clear the court service is lying and they put words into my mouth that i didn't would have cured something in this case i absolutely do but there wasn't a warning that was merely an acknowledgement that this mission to strike had been received and it was raising an eyebrow of the judge but it doesn't actually address the full explicit warning like is required in all of this circuits prior cases and is addressed even in the case of young again which is cited by the defense young again and i see that my time is up if i may briefly conclude but in the case of young again and that's found at four fifty nine federal reports to ninety four in the case of young again there had been numerous sanctions by the court prior to the ultimate sanction of default judgment then the wrongdoer still continued not to rectify their wrongs and continued to act against the orders of the court and it was only then that the court issued a dismissal and  and every single one of these cases we see where there is that explicit warning but there wasn't one here so there was no opportunity for these actions these irregularities to be rectified by mr ingram russian and so i should come back and were never produced i mean does she need a warning but her deposition she's clear that she believes she has turned everything over to her attorney were to maintain documents come she believed that her attorney had everything so there we're going back to the schaefer factors and the blameworthiness of the client as contradicted by the actions of the attorney need to be taken into consideration there is nothing within the record that really gives us any evidence that she personally was withholding these documents she believes that she gave everything to her attorney and when we address these nineteen why can't you say i did give him my journey she discovered him on her computer and she says in her thank you your honor may it please the court the district court found that mr entourage on had quote flagrantly and unremittingly violated the rules governing discovery and summary judgment and that her misconduct quote seriously undermined the truth seeking function of a court it carefully considered the six factors that this court has laid out for weighing a sanction of dismissal including the availability of lesser sanctions but it expressly found that short of dismissal there is not another remedy that would effectively address misra garage on serial misconduct the district court's underlying factual findings are not clearly erroneous and it's sanction of dismissal was not an abuse of discretion no sitting here a council table i heard two arguments for why the district court's decision was in error in the first was that miss rangarajan argues that she received no warning and the second argument is that she should have been afforded what amounts to a second chance either by way of a warning or escalating sanctions let's start with the first as judge harris pointed out she was actually warned in this case the district court issued an order staying further proceedings until the defendant's motion for sanctions was fully briefed and resolved misra garage and then expressly argued in opposition to that notice that a sanction of  dismissal was not appropriate so this is not a situation where due process rights were violated and in this as this court found in choice who tells which is actually not a sanction case a very good indicator of whether the order was clear is whether it was clear to those response to understanding the parties here misra garage and or counsel knew that dismissal was a possibility beyond that the district court tipped its hand saying that it had serious concerns about her misconduct and after warning her she continued to engage filed our motion mr entourage on filed two separate analyses with the district court where she made incredible claims that the videotape of her deposition was somehow seamlessly altered to make it appear that she was saying things that she didn't say and she also filed her fourth claims within the case dismissed ok or what your client is where in this case where there was one is in terms of addressing counsel in this case the warnings to counsel about the conduct the way this case would be prosecuted there was no warning to counsel in this case of the counsel didn't need a warning or didn't i don't believe so your honor oh i don't think you need a warning to know that it's frivolous to file any adenike a claim not once but twice after it's been dismissed there's a reason why there are  that's correct your honor but under the rule against claims splitting what happens is that if you were denied leave to amend in the case of the rule against claim split and you're not allowed to then file subsequent action your remedy is to appeal after a final judgment is entered counsel didn't do that get to that point and it's important with respect to misra garage ons misconduct what the district court said here was i had no opportunity to give a prior warning because misra garage on smith's conduct was revealed all at once and that said it j sixty nine fact that the district court may detail findings that supported his conclusion that misra garage ons repeated misconduct to judge an earmark pointed out seriously undermined to the truth seeking function of the court you have findings that she intentionally withheld thousands of respons documents that she made false certifications about compliance with discovery requests that she repeatedly made baseless accusations about the court reporter but she made misleading statements regarding her retention of work e mail suggesting she had only retained a few when she had retaine thousands and that she offered no explanation whatsoever for her failure to produce a letter and an application there were theoretically helpful to her case she didn't argue below address that failure at all and so for all those magic incantations it's obvious from this record that the district court found bad faith here beyond that the just record express we found that it had little trust or little confidence that miss rangarajan and her counsel could be trusted to litigate fairly going forward so what do you do the three main tools of discovery in this case in iraq a turris deposition document requests they're all dishonored so you're going to have her go back and start this proceeding over again what confidence do  that you're getting the information that you need every aspect of this case violated the trust that needs to go on in civil discovery and what i would say here is that there is a strong need in civil discovery for a powerful deterrent because it is difficult to detect when violations occur and what you want is you want to party looking at a document that is potentially fatal to their case and say that the repercussions of me not voluntarily turning this over to the other side are so severe that i am going to surrender it voluntarily rather than risk having my case dismissed as a sanction and so for all those reasons the district courts finding was amply supported by the record i would like to briefly address the law on warning because it's been cited  by the other side no corps of which i am aware has imposed a requirement of a warning in every case the supreme court has held it was in the context of failure to prosecute the dismissal is not a lawyer simply because of a lack of a warning and it's said that the most appear severe in the spectrum of sanctions must be available the district courts beyond that this court actually affirms what it dean in essence a sanction of dismissal in a case where there was no warning whatsoever and  this court's decision in route in that case the plaintiff there was found to have engaged in bad faith in violating an order of the court and what the district court did in that case was it essentially deemed all that evidence stricken and granted summary judgment for the other side and here's what's interesting on appeal this court said that was in essence a sanction of dismissal but beyond that this court affirmed because there was a finding of bad faith and what else is interesting or out rabb as it pla out in this case is it shows that the district court might have been reluctant to go through the steps of striking her evidence and just ranting summary judgment when you have a decision of this court that is telling him that that is the same thing as granting a sanction beyond that the opposing counsel has highlighted statements from this court where they've highlighted the significance is the words this court used about issuing a warning or encouraging trial courts to consider less inspections that does not speak of language of a requirement and we know that those cases would have been decided differently if it were this court would have just said there was no warning issued here that's a requirement we're vacating or mandy it didn't do that and as judge harris pointed out a lot of those cases are distinguishable on the facts the lachie and have both involved the violation by counsel of a scheduling order and what the court said was we consider the salient fact that the parties wouldn't know that that would necessarily result in  dismissal here you have repeated instances of what i would describe as inherently bad faith conduct making misrepresentations to the court deliberately withholding documents and the like that set this apart from those cases choice hotels there's not even a case that has anything to do with the sanction of dismissal in that case the parties entered into a settlement agreement it scuttled and the district court essentially took it out on the other side for not violating the terms to and what this court said there was if you're going to impose conditions before a party can refile the need to be clear at the time that makes sense that's different from the facts of this case as your question am i think on the one hand they're two different concepts in the air here one is this idea of a warning and a second chance to comply and then whatever we think about that there is this bare minimum due process requirement that before sanctions are imposed there's notice and opportunity to be heard so is it your position that the plaintiff in this case was an effective notice that the fourth action might have been dismissed even though nobody had asked for that or is it more that it doesn't really matter if you know precisely the nature of the sanction that's being considered i think the pla did have notice in this context we we notified the court of the relation between the two cases and we noted it's filed when it was filed and then the district court state our obligation to respond to that case stating i don't have the precise words but until it adjudicated the motion for sanctions if it was going to stay our obligation to respond she may not have known if it was linking it up if this court has any reservations about the case though there are two alternative bases for affirming dismissal the first is the rule against claims splitting which i've already covered because you have identical claims denial of leave to him and then you're trying to reassert them in a new action that's automatic beyond that you actually have rest judicata now because opposing counsel never challenge the underlying order in our first case denying her leave to be a med so that portion of the judgment in the first case is now final and so that would preclude her from bringing the same claims over again in our fourth case and i'll briefly say two other points about warning as a policy there's a reason why it hasn't been opposed the first off is that there are certain kinds of misconduct that are not deserving of a second chance so for example take the hypothetical of intentionally concealing a document with the intent in parents use in an official proceeding that's a crime under eighteen u s c fifteen twelve say under misra garage's argument that seem conduct would not lead to a dismissal of an underline civil case which she was perceiving but beyond that sending a signal that a sanction is required in every case would effectively parties know that they have one get out get out of jail free card and so for that reason it might actually embolden certain parties to engage in one time instances of misconduct as they know it can't lead to  i would simply can conclude unless there are any further questions from the court by saying that i'm mindful of this court's need to set appropriate standards what i would say is that even though in a sanction of dismissal is a severe sanction the conduct of the issue here was equally severe and i think district courts reading this decision if it's in a firm and there's little risk that they will then take it one time violation let's say missing a scheduling order violating the discovery deadline filing perhaps too long of a rule fifty six see for a declaration as license to dismiss all those cases what i do worry about is what the teacher would send this court you have pervasive misconduct in this case that's repeating throughout time it's a den a fight all at once and if you were to vacate here i think district courts would rightly feel helpless when is the sanction of dismissal appropriate if it's not appropriate on the facts of this case for those reasons if there are not any further questions we're prepared to submit sentence and say no i did not say that i said this and i said that those are things that most people don't because that's but that's what that's what judicial temperament and all those things cover the place because it deals with people who don't deal with people who normally too many coins but they come in this novel some most people don't but what's there is she couldn't do that i think women are rot it turns into an effort as the district court found to rewrite rewrite and replace her function in the process and that is to weed out champions and i would have a serious concern if a plane or that something supposedly happened to them can't speak to what happened during a live deposition but then suddenly behind the scenes after seeing a motion for s judgment and laying out the numerous deficiencies in our case uses in iraq to what i think she did was so doubt in the legitimacy of her declaration of her deposition and muscle allowed her to submit the declaration that she submit reports findings on the iraq it's still found that there were almost five hundred corrections comments and proposed additions and what the other council highlights was that the district court said that many of the proposed changes lacks substance i agree many of the additions that she approaches to her are not all that significant in and of themselves the fact that you said back in what you take out is not significant what is significant is that for hundreds of lines of testimony discussing key aspects of her case she saying the court reporter got this wrong and then she is filing a declaration it's meant to undercut every negative performance evaluation achievers and that's what makes the rada so fundamentally wrong in this case and it is just one in a tally of evidence that was in front of the district court this courtroom view on clear error has to look at the entirety of the iraq or in decide whether or not the district court was clearly erroneous based on that and for that reason under the standards of review dismissal and it was actually even more specific than that the court tells them that specific claims will be dismissed against specific defendant so that not just on one occasion and not just on two occasions but on three occasions the plaintiffs in that case failed to abide by the order and failed to meet those specific deadlines and dates based upon those actions the court did hold that dismissal was appropriate but there was a warning and again this case is actually before shaffer so this is before it's from one thousand nine hundred eighty five it's before we get to shaffer and it's before we get to the six factors that are laid out for the courts to analyze and evaluate when they're determining whether or not to impose the most severe sanction of dismissal shaver presented egregious facts we had an assistant united states attorney who was found to have really committed professional misconduct because he wasn't forthright with the court he didn't notify the quarter of an investigation that was pending into one of the credentials and to the credentials of one of his witnesses and the court found that he had repeatedly and deliberately and in bad faith failed to make these like you know doesn't it doesn't seem like it was the end of the world or anything what happened here but i think we've been cautioned by the supreme court not to do that as appellate judges it's no fair like of course we can afford to be patient on who i spend a couple of hours district court who really went very carefully through those schieffer factors and said this is how i understand the case that was litigated in front of me and it's very hard for me to see how i as an appellate judge could say district court judge here short so i understand the warnings from the supreme court i know that they're saying that well hindsight's twenty twentieth's when you get to the appellate level it's easy to look back and say wait a second they hadn't done that for sure but the trial court in this of feel that the times at which the district court said these particular abuses of the process weren't deeply prejudicial or they weren't abuses because the changes weren't substantive that to me cuts the other way i look at that and it gives me a lot of confidence i were judge has been really fair but i disagree your honor very respectfully because the court outright states that a warning number one is that necessary in this case so they jump over everything else that said and see for everything that said in the project management piece everything that set in half cocked everything that's addressed in young in rap all of those cases so they jump right over that and they bypass it then when they're evaluating the factors one of the factors that i find very intriguing is the public interest and the court  all address the public interest in cases of discrimination retaliation and in this case especially for minorities there is a great public interest in those cases being decided on the mayor and a lit to yes perhaps was challenging to the trial court presented those misguided irregularities that individual case was it might be significant that the case was at of granting or denying the motion some good judgment going to trial at that point you expect to have orderly process and when the court uncovers the fact that there is basically but i think it concluded that the case was so infected with problems of deliberate contact with part of the white death that there was no hope of doing it over again or starting again and it's it's just been an abuse of process and you can't get the benefit of an abuse of process and if we were to send it back this woman would get en of everything she's done and i personally think it record shows that she was actually angry at johns hopkins and she had all these doctors named they brought in every one of these doctors from their busy practices to testify to she was contradicted one hundred eighty degrees in every one of those cases and everything she alleged about their supporting her they did not and they supported the fact that she was properly discipline and so now she's fired and she brings key ten action discriminations actions that the nation defamation all kinds of things dark you know and then she files on correct it a court here at the end of the whole process all the discovery is completed the summary judgment for the court who has to decide the case and also in the court concludes everything is rotten in this case we can't use anything well the court doesn't make that explicit finding that everything is rotten so i disagree with that being the wrong you can't rely on the iraq doors you can rely on the document production you could move on the depositions but that isn't entirely what the court finds and the court was not in the position to say that i hadn't a fact those are issues and i said that we would have to redo all the discovery in the motions practice courts it and i believe your honor if we look at the prior cases we've gotten to that posture before we've gotten to the close of discovery the filing of missions were always done with this case we were actually in trial posture and project management project management was two days away from trial and the court found that there were again reasons to give leniency and allow for another deposition to be taken so i don't believe that what the court ruled and i know that my time is up but if i may prefer you know me i don't believe that what the court ruled was that this case was impossible to make going forward if other action had been taken because  maid and she was trying to resurrect it with false accusations and declarations of out her deposition but then it ends trying to fill the gaps that otherwise could not have been dealt with that contradicts the court's own characterization  an embellished narrative embellished narrative doesn't do anything to completely circumvent the fact finding function of discovery so it didn't prejudice the defendants it actually gave them a little bit insight so perhaps instead of just having her deposition testimony now they know exactly what she's going to be saying at trial but again the case did not get decided on its facts and the court was not in the position to decide the factual disputes and the record is sur the existence of that fellowship application so her testimony it with regards to that and i understand that it's not then the record before this court but that just goes to show again there were issues that were not fully addressed by the trial court so putting words in its mouth that basically it's worthless and she's trying to fill in the gaps with this this misconduct and we're we can read that again and look at thank you your honor and if there aren't any further questions