are ok this is the mark and the morning minute please the court we ask this court to reverse the six million dollar discovery sanction as an unjust abuse of discretion this was a civil death penalty for m and such ultimate sanctions are normally reserved for the most extreme cases which this is not going to focus this morning on two factors willfulness in the failure to properly consider the us or sanctions that are tethered to the alleged wrong and rest on our brief for the rest of the issues come in there only i just like to put this in context mr lodge and they had no motive go obstruct or delay here because he had just one partial summary judgment to narrow the case and he was eager to vindicate his name and save his business since he was faced with a former attorney with irreconcilable conflicts was blaming and ultimately there was no harm from any discovery delay because everybody knew there was never going to be a september trial in this case because the name needed to find new consul prepare a new consul for that trial as to the facts do not support findings that was in a willfully and in bad faith refused to obey the april th order but rather shallow that he had always complied before this episode with all discovery was a hint of complaint about him before this and he tried to comply in two thousand and sixteen but new conditions beyond his control caused in part by the plaintiffs prevented faster compliance he was not somebody well your honor i'm glad you asked because that's one of the three flaws or two of the three flaws in the wilfulness findings that he absolutely did not make such a misrepresentation on june th and let me explain why there's t reasons the court concluded that he had acted in bad faith because one had bound him to his attorney's june th statement to the court that day had completed a production and then held that this was a misrepresentation final look at that depends on the authority of the attorney the core didn't do that here it refused to do that it really hit behind that absolute rule but more importantly it's not factually true we focused the court's attention in in e mail between the attorney withdrawing from the case the mister and i submit if you give a fair reading to those e mails go through very quickly but it's absolutely clear that that's not a true statement so the be forthcoming and i'll leave a note with the delivery today to that effect unless you tell me otherwise the attorney you can't represent cannot represent that you have complied if that's the case the only representation he's prepared to make  complied that says all the documents we could find as of today i am producing is very clear about that they turn against us i don't have the option but but then then they find twelve more boxes yes but he's saying to the attorney your honor that i mostly produce today what i can find he's not representing that he's found everything there is rich producing everything there it's clear that he's telling that to the attorney and then the attorney says i don't have the option to say that i can only say i'm complying in totality and watching they respond by saying again i've only complied as of today if you're playing some kind of game with me to get us in trouble cut it off immediately i hope this is unacceptable in this weird out the record clear about that and badger mentioned that you know because not only is the record on curb on it again remember i was in a is sitting there pro se is got nobody advocating for him he doesn't know what the rules are he doesn't know anything about the legal standards attorney is trying to get out of the problem he's confronted so he's not saying and the court doesn't even make have a hearing to find what documents exist mean i'll concede that there was an effort underway to get from a electronic records that might fill in the gaps but other than that there is no fun there's the plainest version and there's the defendant's version of but there is no evidence or hearing to find out what the facts were and again i emphasize but suppose of the lesser sanctions does there was never going to be a trial in september was going to be a trial until two thousand and seventeen and i had no attorney the judge was going to let these people with roy just held up technically to keep him in the case for good for the periods that he had an attorney during this whole episode that the judge did the macdraw on august sack nd in the case he would have had to find an attorney and go to trial sometimes it was it wasn't part of the reason he didn't happen attorney that he wasn't cooperating with discovery no they didn't want to be in the case the judge found there was a record sabo con conflicts and they were not paid i just want to also say that the rd flaw is this about is this idea that he had some motive to delay discovery this is something the judge just invented out of thin air there's absolutely no evidence for it and it makes zero sense he had just one summary judgment he needed the vindicate his name the judge found that he was the way and so the good way judgment broke it would just work against him i want to make sure i'd leave time your honor for the sanctions issue because the key thing about the sanctions issue because these documents were only about damages the plaintiffs are completely an appeal they that there was no discovery had been closed in two thousand and fifteen they can't the judge after summary judgment was partially granted they came back for more discovery and so in our brief but they asked for  the for the for the bench because us on possible for a jury to decide damages so i submit to you that if there was going to be sentence that should only have been and damages and these documents had nothing to do with wasn't his personal liability the only issue for his personal liability was was he an employer or wasn't he an employer and the case was very thin on that the documents have nothing to do it that and the judge not only didn't and that was told to the judge on july st in the letter to him that it was just damages and yet he gave no consideration to that in part because russia had no what's really advocating from at the point and he didn't know what the legal standards were to advocate for so  really if it was going to impose a sanction he should have considered lesser things like like shifting the burden or restricting the proof or things like that instead of this fatal ultimate decision which so we can see you now you're back i am i'm back i received some expert technical assistance here but i have now i have now joined none and secondly to he had put in was diligently and put into the record the fact that while he was trying to comply he was constrained by the fact that the plaintiff six were actually cause the restaurant he had closed and hundreds of boxes worst which were scattered there that had all these documents were moved all over town he had no staff except for one person who had not no knowledge about the records mr allows and i was not a full time he was done wasn't an employee they weren't his records and shouldn't with that in the record a judge should have had an evidentiary hearing with an attorney representing motion a to ferret out whether he was constrained by circumstances beyond a hero but he didn't have a lawyer at that time no he didn't have a word d th and i can't emphasize enough your honor that if there was going to if they're what if he's going to find a lawyer and has scheduled a trial and if the judge is going to have a liability trial which he said he was going to have st there would have been a damage trial for and then we'll come back to please the court the district court did not abuse its discretion it entering a d fall against defendants who brazenly plotted its the score reorders and repeatedly made false statements to the court these actions demonstrated not it's the last sentence of the nd paragraph on that page in the end all documents were produced within the final timeline ending july th two thousand and sixteen and this was actually just one of several false statements that lush any made in that letter regarding the discovery on the page before he says that the st ten boxes that were produced to us had never been accounted for by by lawyers on either side that's not true we sent a letter detailing what was and was not in those boxes he talks about the class lists that defendants produce he says i don't know how my attorney's got this document how they produced it i've never seen it his own employees emailed the class list to counsel and copied mr lodge an e on the e mail another false statement that he made in that letter not related to this particular discovery dispute but when he complaining about class certification he says that certain recordings were sent to katie but were never produced they were produced and they were reference in motion practice so long as any had an extensive history of making false statements to the core on his own behalf relating to discovery dispute and that's that's why the court was correct in finding that he acted willfully and in bad faith and given that he was not being truthful about the production and what was being done to comply there simply was no reason to believe that lesser sanctions would suffice to compel compliance particularly since the previous lesser sanction of a seven thousand dollars fine did not induce full compliance michelle mone notice never sent out it was originally do june th of two thousand and sixteen was it sent we sent the class notice on july st yes how many opt outs believe it was to what was the total size of  class i don't know off the top of my head i think it was something around five hundred so about five hundred people and under the new york labor law they go back six years on the statute of limitations that's correct as of the april th discovery order which related to rule twenty three class discovery as of that missed as of the missed deadlines in june and july mr laws are needed was not a party to any of the class claims isn't that right at that point correct because that's before the reconsideration so he had been on the hook for a two f l s a claim two to three years and just the hopkins a few dozen people but suddenly at the moment the sanction is imposed he's on the hook for hundreds of employees going back six years is that right that's correct i believe with the number of options was about seventy four dollars ok so why is it why is it fair i mean the supreme court has said that the sanction must be related to the particular claim that was at issue why is it fair to impose this sanction on him when at the time that he was allegedly dragging his feet he would say he was not a party to those class claims it was class discovery that was happening that's all it was well it was it was class and collective discovery so there was outstanding discovery on the collective plaintiffs that's part of the issue here the documents relating to the tip pool and the major d s those relate directly to the f s a claim the f l s a claim in this case was that the defendants were not entitled to pay employees pursuant to the tip credit because the major d's were improperly included in the tipple so the discovery related to all of those claims  lies and he was also the actual wrongdoer in this case he was the one who was in charge of collecting discovery furred for defendants made the actual representations to the court that led to the to the default and of course as statements that the district court made about certain relevant facts he said that the discovery schedule was in place years ago and that's false right that was the discovery deadline for called for this category discovery was put in place on april th right that's correct and then he said noncompliance has persisted since at least the april th order right but that's false because the st deadline was june st that's the class list which was provided three weeks later and then the next deadline was that as of august th there was less than two months delay right that's correct but it was guaranteed to be at a minimum another two months delay because on august nd position it will take two months to prepare a list of major d s and their dates of employment which is highly suspect given that they were able to prepare the class list which contains many more people in a much shorter period of time there's never any reason given for why the meter to us had not yet been prepared and why it would take two months to to pull that together for the major deal this was not in the class list that was provided on june t correct the classless was just the class numbers servers bartenders bus or those positions not the major t s the major dealers was never produced you have any case where that in the nd circuit has allowed that the most severe sanction of default judgment where the period of noncompliance was less than three months i believe there is one case i don't actually believe it cited in if i get what i mean which was the reason given to the court for the withdrawal of counsel the court permit defense council to withdraw because of  july th letter that's where he accused his counsel of gross misconduct in all aspects of the case talking about the class certification and lack of settlement as well as discovery issues until that point  judge sullivan was not allowing defense counsel to withdraw because of the delay when you say discovery this is what  said that  his attorneys had failed to account for the documents that had been produced he complained about the classless and that katie pulled it out of nowhere and never let him see it what reason was given to the court if any by counsel by the words themselves why they were withdrawing well the original request was made because of the outstanding fees i believe it was over one hundred thousand dollars and then after that if i'm getting the timing correctly it was when they submitted this july th letter that they renew their application yes that's correct it's in the sealed appendix one hundred and twenty two unfortunately as this letter from  demonstrates our relationship with defendants has broken down completely and beyond the point where we can can continue to represent them effectively and you know in the letter lies any just makes numerous allegations of unethical conduct by his attorneys well they had not been paid one hundred thousand dollars and they were they weren't doing much work at that point where they mean i well i don't know exactly what they were doing there certainly are e mails going back and forth that are in the sealed appendix with the attorneys trying to get the lies you need to produce discovery i know isn't it a red flag in terms of their representation when a court orders a whole bunch of documents for class discovery produced in a week and they just emailed the client and tell them to get it together and produce it directly rather than sending six associates out to oversee it and get the documents and organize them is there anything in the record that said mr la germany was preventing the lawyers from doing that no i don't believe so  page twenty nine dollars of the special appendix the bottom of thirteen the court gives its reasons for with the meaning withdraw after keeping the illusion  reason to draw the next page it goes into the irreconcilable conflicts between the news that relationship has broken down and wasn't broken down because mr a was making legibly false statements has broken down because he wants upset with the conduct of his attorneys and their failure to help them and they weren't doing a single thing during this period of time to help them find records they want doing a single thing to advocate for him as to what the standards for lesser sanctions are he have no clue what the standards for a lesser the harm done here was surely damages no one has disputed that on appeal the players haven't disputed that they've the pop on appeal that could have been solved very simply maybe never at all because he would have had four months to find any missing documents of the time any trial would have happened the judge just got angry and they because he was frustrated that wasn't going to be a trial and at the end of the day when you look at his opinion at the end of the opinion if he even reverses things it's almost like alice in wonderland he says because we can't have a trial in september i'm going to default you that makes absolutely no sense it's the other way around it should be should i default to and then i'll figure out whether there's going to be a trial  so for all of those reasons what happened here is totally unfair and the courts have reversed outright the sanctions with instructions if it's going to be there are going to be any hearing at all and it should resign the case a