here representing the defendant appellant in the case which is bulky et al versus carmichael al this is a case that is surely centered on the issue of that story i believe the language of the rule question when compared to the rule that was derived from which is federal rule of appeal a procedure can limit that discretion where we respectfully suggest that the court should take into account the language the structure of the rule and also how it'd derive to be structurally consistent with rule ten in determining what can and can't be properly designated brinkley's and the record of the rule in into bankruptcy the comment but this sickly address the fact that because bankruptcy cases have a lot of in a related proceeding the mandatory nature of rule ten a that requires everything that is filed with the core to be included in the record would be an unworkable pollution therefore they impose ringback or any party and to move to strike items that are quote improperly designated but improperly designated is not defined in the rule so looking to the language of the rule am a comment which recognizes that the bankruptcy ringback the the bankruptcy case if we if we interpreted this rule consistently with rule ten a what involve a number of documents that may not be relevant from related proceeding i respectfully suggest that the designation requirement only make sense if you interpret the rule that parties are free to designate from the main bankruptcy case if they are filed and of record and available for consideration for the court and this is particularly true if the items filed in the underlying bankruptcy k are significantly related to the matter that is on appeal and if they contain binding or ringback rulings of the judge that are related to the issues on appeal and for that i look to with typically rule eight  included the item made by the party another thing it must be included any opinion findings of fact and conclusions of law relating to the issues on appeal including transcripts of all oral ruling now this is not the opinion on appeal or the finding the back on appeal it says any finding the path back or opinions or conclusions of law that relate to the issues on appeal this is a case in which the blan sole cause of action against the cause of action for damages against the defendant was arising out of a violation of the automatic de if anybody can condense an a and that has to be cas period end of story why do we even have a because i would direct your honor to the cases under rule ten e m m do you have the cases that are cited here  allows a district court in a appeal from a district court to resolve the suit over quote what occurred in the bankruptcy and that identical language is used and i don't mind the four and in the district court if this was an appeal from a district court we wouldn't be here because all of these items were filed in the bankruptcy and if you have somebody moving to strike and i don't designated from a district court run over and grab from these other thirty thousand pages some other document isn't that the problem that eight o nine e's trying to deal with the reality of these massive asarco west bankruptcies where you've got an adversary the scene that's kind of its own world in its own trial i believe eight o nine he is trying to resolve the do differences over what occurred in the bankruptcy case and i think rule eight and nine a poor egg which imposes the requirement on parties to designate items in the record is what's trying to resolve the math the ringback record issue because that requires the parties to designate relevant items and if you look at the case law the case law says that the record should include all items necessary to a complete understanding of the case there's also the issue of do we have to relive aga from the debtor and they are standing in the shoes of the debtor and so that's one issue the other issue is one of the issues on appeal in the main but appeal which we're not here on today has to do with whether or not the plaintiffs are contradicting the positions taken by the debtor and contradicting the position they themselves have taken in the underlying bankruptcy it seems to me and again i realize  address it is the you know trial lawyer and so forth and it seems in this case you could have easily brought in the materials from the rest of the bankruptcy and presented that to the bankruptcy court in the adversary proceeding and then that would allow the who are do address whether or not to consider them why would they actually do that well i didn't try the underlying caves and i'm i believe from my reading of the transcript that it was number one unnecessary and these items are being offered for a purpose that they wouldn't have been introduced to trial for example the transcripts you can't just all her whole transcript into evidence unless it's all part of the bit purposes or maybe it's one of the exceptions mr springer whose testimony we're trying to get in here from other transcripts we're trying to get in parole allowable purposes under the indian arm's kegs to show that positions to show that certain things were by all to show that certain findings were made in the underlying core that would not have been something that would have been offered into evidence factual portion of this trial  it would be something the bankruptcy court needs to because to be fair we have excellent benghazi judges throughout the circuit but they can't memorize every aspect of these massive cases and so if you are wanting to remind the judge of something that happened has right well it was raised in this proceeding and i think the best evidence that it was raised in this proceeding and is the court's findings the back to conclusions of law and reference was to pick only for example the meeting of the underlying bankruptcy but it's just not something that you would offer as a piece of evidence in the trial live pallies want the court to adopt a version of the rule that say that if you don't offer something d into evidence it can't be in the record there's simply no already for that there are all of the papers that they rely on say that if it is either needs to be available for consideration or offered in evidence not and offered into evidence i mean a rule that says if it's not offered into evidence it can't be in the record basically would exclude everything that not an exhibit and that is why isn't there a record of how was my known to the  well i think part of the problem is that this is a five for created appeal from the main appeal and what happened procedurally in the k is we went up on appeal and the record w actually transmitted to the district court after the record was transmitted to the district court the of hell we had for the st time thought a hearing on their motion to strike items in the record the district court rule based upon her understanding rule eight hundred and nine that she could not make that determination so she stayed the appeal and sent it back to the bankruptcy or to make a decision on the motion record from the main appeal was already on file when judge rosenthal bifurcated this appeal into a separate proceeding the transcripts from the cry all are in the record in the st appeal they are not in the record in the feel we had my opponent had moved to include them in this record and asked judge rosen boggs actually one of the issues in this appeal to consider that record because the i think the position during the adversary proceeding was repeatedly objected to that they shouldn't be allowed to testify contrary to the values that were offered in the underlying bankruptcy and the exhibit in the t part of the dependence exhibits which were brought up in the record and they basically have the contrary value for the property and so that was argued repeatedly during the trial in this case and that in its findings the core addressed that well that is that makes the cli an issue of law appeal in the main appeal of the of the judgment because the issue is whether or not they should have been allowed to contradict the findings in the underlying bankruptcy against the debtor from which they were they received their assignments so that is very much an issue in the underlying bankruptcy and there are exhibits that say that this particular why do you need these exhibits that aren't in the adversary the cd if you've got what you need is the airbus or c well the statement of issues on relevant background information that would give to the court's manifest errors of fact and law and we believe the corps made a manifest error that so that relates to the value of the property also one of them it seems to me that if the bankruptcy court in the adversary she never saw the material why should that be included in the record on eagle the bankruptcy court did see the material the bankruptcy court reference the material in its findings of fact and conclusions of law so the bankruptcy court did consider the material there's extensive testimony about the transcript as far as the patent exhibit those are a little bit different those are really more part of the judicial notice argument and just so the ringback court is aware there are much of what is in the excluded pack an exhibit in related exhibit that were before the court there were some  between the plaintiff's exhibit in the ben exhibit but there were just thirty pages a certain portion that were not duplicate and i don't know whether it was i'm a banker i don't know whether it was just an oversight but the the differences were not noted in the transcript of the proud proceeding and the plaintiff's exhibit admitted but the defendant's exhibit didn't and then coming back to the motion for new trial we asked the court to take you digital notice of the records of the patent office which mostly give date that are not included in the plaintiff's exhibit so that's that's separate from the transcript the transcript say well that's precisely why we're here because we're here to buy and the standard the weather gets have to deal with it and there really isn't and actually consider requirement if you compare the three cases re blasting game case and the there are several other there are many office building association there are several other cases where the courts rejected the the proposition that it has to be actually considered mamma poor they take the position that it has to be available for consideration by the corps and if it's in the record it's amenable f case although justice in a particular case is important the question we're also looking at is how do we construe a ninety so tell me your construction what can the bankruptcy  st off i would say absolutely the bankruptcy judge has the ability to remove any item that was not available for consideration and i'm perfect example of that would be items for example if you have a motion  or another example would be and and i won't tell you that some courts haven't allowed it because they have sometimes people tried it to file things from outside the bankruptcy core that would coming for example from state court proceedings or things of that nature and there's cases going both ways on that but i think that the the resolution is very well addressed in the black thing i mean in the  indian it something that's susceptible of judicial notice i think it can be added to the record because i think this core and any appellate court district court sitting in the public or has the ability to take judicial notice that if it's not and it's from outside the record it's not filed with the bankruptcy court then that judge can't click on a on his screen on the docket sheet and pull up that document at his discretion and the other thing i would point out to the courts that on these transcripts and again if you look at the findings of fact there are multiple references to the transcripts that are based on the audiotapes because in the bankruptcy court there's not a court reporter sitting in the corps all the hearings are audioboo recorded but they are available for the court to listen to and if you notice in the findings of fact there's numerous references to the audiotape date and the time and and you know the minute and nd reference so the fact that it's not transcribed does  consider anything that the lower court did not actually consider whether you can include the record or not as you know i would not i'm not going to reverse a judge when you bring in a new marriage on are going to consider well i think that that it depends on the reason that it is being offered for consideration and again in this case that's not the situation that we have the items that we are trying to include in the record  items that the corps consider now the fact that the court that i didn't consider it doesn't mean that they were consider i mean if you look at the findings the but the referenced in the findings the back and in the to point it has to actually be considered by the bankruptcy judge or it's not going to matter in well again i respectfully disagree because i think that if you look at the indian homes case i think that good morning and they please the court my name is karen emmett and i am here today speaking on behalf of the apple lease who have been designated in our grave as the creditors and the appellant has been great as well and i will be referring to the parties as such i want to begin by addressing a point that is central to his argument and his very as well as to the comments that he made here on earth this morning but he makes several representation in the opening grieve and the reply brief that all of the stricken items were heard for the court box you represent that all of the stricken items were of record in either the underlining bankruptcy case or in the adversary trial that is not a correct representation as to the creditors meeting transcript and the thirteen patent exhibit the creditors meeting transcript was transcribed and february of two thousand and nineteen judge jest who presided over th atmospheric proceeding made his findings and decision in september of twenty seven to clearly the creditors meeting transcript was not available or a record to him at the time he made his finding the patent exhibit those patent exhibits were not admitted into evidence during the trial they are not filed in the underlining bankruptcy case nor are they filed a braggart in the adversary trial because they were not admitted into evidence judge found when he made his findings in september of two thousand and seventeen did not have the patent exhibits available and they were not of record for him to even refer to available of the creditors meeting transcript i do not believe so i believe the procedure was that you have to actually ask for the audio to be made by the office of the u existed to be produced that is correct and on the end with understood the question and yet now it's not there somewhere you're just saying it may not have been readily available to the judge that is correct and i apologize for misunderstanding the question yes every creditors meeting it is transcribed and audio is available for our transcription ok paul he makes a point in the brief that i really wonder valid because you have this  amir you offer an exhibit and the judge rejects it that's something you may want to appeal it may have been a critical exhibit and in my experience you may get a proper exhibit or bill review exhibit some other terminology whenever you want to call it and then those in a separate pile but it's in the record available for kiel as something the judge declined so that on appeal i can say the judge should have declined plaintiff's exhibit  judge is that we get the documents that were declined when the person probably is that is something to put in the record as an exhibit that they are checking to and so you're to a net if i understand the that that judge throwing any different than any other judge on that right you can create that record if you are exhibit one and he declines it you can create a record of that in your own ject into that coming up to  not at the trial level honor and the point to that is that there are general references in the findings of back to conclusions of law and i do have those handy that and it would be on page twenty nine finding number fifteen this court held a hearing on the confirmation of the debtors proposed nd amended plan to bring organization and at the end of this hearing the court issued an oral ruling denying confirmation so there is a reference to answer your honor's question procedural reference in terms of background and as to the creditor's meeting that took place that would be finding number twenty at page thirty in the record that after the debtors chapter eleven case was converted to a chapter seven case the meeting of creditors was held on april rd two thousand and fourteen and then continued to may st two thousand and fourteen and again those are generic general references to establish a procedural timeline and the judge said as to the transcript of the creditors meeting where in the record miss bain do i reference the content of the creditors meeting trans and judge brown was very adamant at that hearing that he was not rep from saying the content of the transcript he was sure of what he had considered in reaching his findings well our general presumption is that judges are telling the truth and that we don't assume and nine well eight o nine the stablish to give the bankruptcy court the decision as to whether or not they record accurately disclose what occurred in his court and it allows for many items to be introduced into evidence and it allows for the opposing party to state if an item has been improperly designated which is what occurred here eight thousand and ninety laus the court to examine what's in the record what did he consider and what occurred during the trial before him what evidence was put into the record eight thousand and nine he is saying what must be in the record and we went through that during the transfer during the hearing on the motion to strike what items needed to be in the record and judge recognized that and allowed those id to be in  because eight thousand and nine dollars he allows the bankruptcy court to determine what occurred in his in the matter in front of him the other section is the general section that allows any item to be nine he puts forth limitations on what can be designated otherwise why would we have a one thousand and ninety is the question that i'm going to bring up in my oral argument as  well my view is that eight thousand and nine he does place limitations and that would be what was in front of the bankruptcy court the other section is broad and has no limitations that hecla has limitations that the party must we have the ability to object to that which they are proposing to be in that record designation bucket can be taken over to the bankruptcy judge who can pull things out and that yes your honor that that is the purpose in my world of eight thousand and nine that they that parties are able to object should i continue ok so in going back to my opening statement about what was in front of the court and what was said we believe that the only remaining issues before this court today would be the transcript of july rd and the transcript of february twenty four teams which were both filed and up record in the underlining bankruptcy case what i really want to talk about is what this appeal is really about and the essence of this appeal is to what extent may evidence be added to the appellate record that was not included in the trial records and was not considered by the port and its findings that's really what we're here out and perhaps that goes back to answering some of your questions which would be we're talking about evidence that was not submitted into the record during the adversary trial we're not talking about generic pleadings that had no bearing on the issues before the court we're talking about actual evidence and thought he had an obligation to present his case when this matter was in trial this was the twenty four day trial from november th keen to january th king the king was represented by counsel the entire time during the trial he certainly and both sides had ample opportunity to put their case on offer evidence bring forth witnesses and to make arguing that the two transcripts which have been referred to as the transcript from the july rd king hearing and the transcript from the february th fourteen hearing were both available and could have been offered into evidence as your honor pointed out in the oral argument by office and his counsel they were available but his counsel chose not to introduce and into evidence the creditors meeting transfer was not available but an audio could have been obtained from that trip from that hearing and a transcript could have been produced to the court at the time of the adversary trial the patent exhibits were available and as judge rosenthal pointed out as we pointed out in our items to get a nd bite at the apple which is not the purpose of an appeal and appeal of does not and should not permit balky to retry his case at the appellate level with evidence not offered during the trial the question is how often the transcripts and the passion exhibit are to the appellate record when they were never part of the bankruptcy court trial record to begin with and the th circuit has responded to court if they were not before the bankruptcy court in the st place if the patent exhibits and the transcript are permitted to be designated in the appellate record the creditors but not have had an opportunity to meet the evidence against them they would have not have had an opportunity to cross examine the witness providing the testimony to rebut the testimony or the evidence bankruptcy will a one thousand and nine  as we've discussed allows the bankruptcy court to determine whether the record accurately discloses what occurred in his court it's not really the party's of their duty to establish evidence and to offer evidence during the trial bob he relies on the rule to expand the record by designating new evidence not offered at trial and again this was a twenty four day trial coun made the decision not to offer any of these items into the record so at this point balky in fact or in the evidence and trying to get in to the appellate court what he did not get into the trial for at the bankruptcy court level the time for balky to establish those facts that are necessary for his case was at the time of the bankruptcy trial not for the st time on appeal thought he argued that the stricken transcript and panicked if the court a full understanding of the case and show how the findings were wrong but facts relating to the merits of any case must be decided on the basis of the evidence produced at the time of trial not new evidence that signatures in the record for the sole purpose of receiving the judge's findings and that should have been done during the trial balky urges that all items of records can be designated for an appeal regardless of where they are filed if they're filed in the main case or not regardless if it contains evidence not offered at trial and regardless of considered by the judge in making his findings so balking is asking the court that anything in the universe of the main bankruptcy case can be offered and designated on the record for the record on appeal if that physician is accepted and i went over this earlier in response to one of the questions what purpose would bankruptcy roll a one thousand nine hundred sir i'm able to describe short circuit do we even have to decide it should be in my position yes because it's evidence and it was introduced during the trial and it cannot be considered this the th circuit has ruled on that very issue that if it wasn't before the bankruptcy court in the st place then  become part of the record in front of the appellate court and that is the essence of this case it's the heart and soul of it so if if back if anything in the universe can be designated then bankruptcy rule eight thousand and nine what absolutely have no meaning and it doesn't even need to be existing because everything can be designated and what items then as you asked i believe this day when could an item be improperly designated if everything gets to be included in the record on appeal judge rosenthal ultimately decided that in order for policy to prevail he must be able to show that judge actually consider the stricken idea a hearing was held in front of judge on a motion  strike the items designated by balki and at that hearing judge applied his factual inquiry that he of had from his former case which was the technologies and that's a question answer period that he had with office counsel you st asked or any of these items and when i say these items i'm referring to the transcript and the or any of these items admitted into evidence and boxes counsel agreed that they were not admitted into evidence the next asked the question did i consider any of these and that being the transcripts a that in my findings of fact in my findings and i believe i've answered that question earlier when one of your honor's asked today where in the findings are the transcripts where in the findings is the predator's me reference and where in the findings of the february twenty four team transcript reference and it was  agreed at the hearing that the transcript from july rd was not referenced at all so i don't even believe that would be under consideration right now and the judge asked and the response was given where it was reference as i read into this record today and the and judge from determined that those were just general references he was not citing to the contents of the transcript that he overruled and struck the transcripts for that reason the judge from them went on to ask have you offered an explanation have you provided testimony through witness why the items were not offered into evidence and there was no witness provided by bobby's counsel to testify as to why during the trial the transcripts and in exhibits were not offered into evidence the final question that he asked was what is the prejudice to you if i exclude the item and the response to that would be the obvious that it would hinder the case that they were presenting  but judge some felt that there was more prejudice civi creditors if the transcripts and the patent exhibits would be designated in the record because the creditors would not have had the opportunity to meet the evidence against them so both judge bowman judge rosenthal agreed that the findings did not refer refer to the contents of the transcripts or any of the nics that they were only general references the doctrine the transcript and the patent exhibit only contains disputed facts the bulky urge said judge rosenthal take judicial notice of the stricken items filed in the underlining bankruptcy case that were not admitted into evidence at trial but this does not reach me one of the requirements of another case of this court which is a case that was and that notice of the contents of evidence not introduced in the bankruptcy court under any analysis the stricken items would not be able to be included in the record they were not part of the bankruptcy court record the th circuit has told us that they must be a part of the record before they can be made a part of the appellate record judge from determine that he did not consider the content of any of the counsel are based on an assumption that the only thing on appeal was the final judgment and the trial and if you look out the designation of issues on  that there are i believe thirteen orders and but and a dismissal of a motion for a new trial under all that the nine that are on appeal so to take the position that what was offered at trial is all that can come into the record when there are all these other orders that are on appeal is not really realistic in this case there are there are reasons things were designated that are separate and apart from the final judgment and it's easy for me and everyone everyone else to go into the board of linear vision that why wasn't it offered into evidence but as we tried to point out in our brief several of these items are offered her something separate such as the begging or e r t hearing which and which  it just the adversary record or is it the entire bankruptcy tanked and again i would submit to your honor's that if you look at the number of times both the bankruptcy court and the district court reporter the main tank no one treats the bankruptcy court record is take and make an exhibit of every document that filed in the main case the mets just not how are you do it i also would like to point out to the court that ms emmett is misrepresenting to the court regarding the hearing transcript on the meeting of the creditors if you look at the plaintiff amended complying they have a transcript of the meeting of the creditors i could not find it so i did reorder it but the references and quotes from that transcript and the record represents for that is there could be no question that that's one of the central issues on appeal and that these matters are something that necessary for the court to have a full understanding of the k also your honor was asked about where the court reference i would point out to the court that although in his procedural counsel correct in his procedural recitation of what took place in the bankruptcy court he did reference the transcript but he also