false claims act no mr which was the original source he had direct and independent knowledge and he also volunteered ok but based on what we're reviewing this we have to review what was put before the district court ok and i think the district court ultimately set a there under be one the six or summary judgment that what he has submitted is not sufficient he has not met his burden by the preponderance of the evidence is that am i not correctly  krypto so we have to go by what you presented to the district court and i'm also look to the record and i've never seen any you're not requesting leave to a man and you're you've not made a proper that you could show more than what you showed and so if you didn't provide the district court with evidence of the contents of those documents how could the district court find that you've satisfied the burden of showing that you disclose the basis e it was insufficient to establish by preponderance of the evidence but i do believe that leave was requested alternately but it was the night at the end of it so that you're not you haven't requested it here you've not made any sort of you didn't make any sort of proffer or anything you're relying on the documents that we have right yes your honor i do believe there was a motion to supplements as well but that was denied but yes just relying solely on the documents that were presented to the district court there is ample evidence to establish from this which chance he was the original source and  really just a lie but we don't know what was in the documents so he could be that you could be the original source of anything it's got to be the original source of what of this right yes around and i believe in the deposition of david bots go there again in substantial evidence establish that mister chance here voluntarily disclosed all these matters to the government prior to the publication the new well ok so you put in the debt just deposition testimony of david bosco right correct and so and he so you were working with governmental agencies to connection with this matter answer i had been informed early on from my knowledge of the case that the possibility existed to the f b i might be looking into this matter so i called the f b i and asked them if they were looking into it and the question what did that what did you do and when did she do that a this then question after you retained before you were retained by chance ski answer after i was retained question and did you let mr callahan know that you were going to do that answer yes question i'm going to find out who's looking into this matter kind of thing answer yes and did you give there's two more references that are to choose well and i think that's on the record page twenty five and twenty six where mister holder's dr bosco specifically references a meeting with the i r s in which mr wood chance he and his team referring to his litigation team was also present in the meeting of the i r s where the issues of the billing improprieties were discussed and i believe that's on page twenty five and twenty six of the record three specific references that there's also reference i believe it's on in the  actually billing fraud so at that point in time in the meetings with both the f b i and the odd arrests the topic of the discussion was the billing fraud and how that puncture and in addition in the pleadings there's a detailed description about how the fraud was actually perpetrated in explained in detail in reference to both mr ron weiss who was an expert that was retained by mr chance he first uncovered that the billing improprieties were not human error there's also reference within the complaint to the investigation by wendy britain who is a medical billing expert who testified as the medical billing fraud and then more specifically i think critically is the discussion about mr eden and mr eden had assisted in the investigation and he explained his findings and his analysis of the fraud that was being perpetrated well that i seems to me that you acknowledge that the district court did not have the information about the contents of the eden document or the document about the farm formula and so you could have provided that information to the government about the fried that you later allege but that you didn't provide the information to the district court for that the district court is so fine so the district court slammed you and said you didn't meet the  guess i we have to look at what you did provide and you didn't provide any of the contents of it well again your honor i believe that the police this was very early on in the case this was during a it was a motion to dismiss legal sufficiency discovery had not yet been conducted but he had converted it believing that the fraud had only been perpetrated up until two thousand and nine into either a twelve b one motion for lack of subject matter jurisdiction or in the alternative for a motion for summary judgment and that's the way the court had address was there any answer filed there was no answer follow your honor however i believe at this time this matter was consolidated with what the court refers to as the first federal complaint and judge campbell had both of them before him at that time  when these issues were being addressed so there's the first federal complaint on which the phoenix news time article was based upon and then what this is referred to as the second federal complaint are now both consolidated before judge campbell so he had all all spectrums at this but again this was very early on in the case before discovery was had and in fact this and i won't get into the details of it but as part of the motion to supplement there was an e mail that was the team that demonstrated that there was knowledge by the f b i at that time and what was in the first federal complaint that he reviewed when he was when when they were consolidate this before the ruling yes now the allegations in that one sure there was an allegation there was multiple federal the complaint  by judge campbell i think it was in two thousand and fourteen did you claim did you ask in your brief before this court did you allege that it was error to not allow amendment and request amendment in your brain if so do believe that just on the deposition transcript the record before the court and what anyone thought if that wasn't enough what was your what your proffer of what else you could show while your honor again the litigation team was present  there was also meeting with peter sexton who is the u s attorney's office u s attorney at the time where this discussion was had as part of the motion to supplement there was that e mail communication by counsel for the defense in that matter saying hey we're are aware that mr wood chance he has made certain allegations against you against so well we'd like to meet with you there was a grand jury subpoena that was issued in two thousand and twelve requesting records from zone well the company additional materials and i believe judge campbell's opinion alternately said based on what you've given us there's not enough here and i don't think that you can carry it so respectfully around i don't recall what more was proffered at that time but i do believe that based solely on the deposition that was official material and even here in this matter we have sent to supplement with later acquired information but at that point the appeal had already been filed and therefore the court the district court was deprived of any jurisdiction to correct its part motion to dismiss but again there was the companion case w it should be the pre twenty ten amendment is the way we should look at it but then he actually did it with the twenty ten amendments when he analyzed didn't he your honor you know and with with all respect to judge him i think he addressed them both again it was very early on in the case when i was a question more of legal sufficiency and a question of fact that was being raised before discovery had occurred so i believe that's what the judge addressed did you only have the one complaint did you ever amend  under seal for quite some time so it was never actually disclosed to the public the only parties that really got to see it were the court and the defendants in that action so the matter was under seal so that was not the first disclosure  to the claim has already been disclosed the public one of several requirements is that a private party before suing show that he was the original source or she was the original source of the information disclosed in the previously had disclosed the information supporting his claim to the federal government because with chance he never disclose the information to the federal government before filing suit the district court correctly dismissed the case of the false claims act ok so this is pretty early in the proceedings and i'm wondering and he's asking us to apply the principles of agency regarding this his expert mr potts go or whatever record so that doesn't seem to me to be entirely unreasonable but jurisdiction if we don't apply the amendments just that it's a jurisdictional question in the court can look outside of the complaint i know this court had requested and we spoke about the actual drafting them at that was filed in state court claims so all this information mr knew at that time in fact is very detailed we filed in the state court action it's very thorough what he filed in the district court and when the opportune was there because we moved to this messenger stiction so mr chance he was aware that we were going to go outside of the complaint we test things right but it's so early in the proceedings why shouldn't he be allowed an opportunity to amend look but first i would say is just a scale and is that the appellant hasn't raised the issue about moving two men before this court the sole issue that has been raised in their brief and we would say it's been waived by our at least as we see it is the issue about whether mr whether mr chance he's and original source under the false claims act in their in their brief they d remand they did not your honor and i could make correct two things were said there was never a motion to supplement filed and i can direct the court to at least the you know in the excerpts of record you can look and see that there was no motion to supplement filed there was no hundred fifty so from our position it doesn't matter whether you apply the pre or post what it really comes down to is is three issues and in the issue has to do with one whether dr b providing this information on behalf of mr richman city to you know whether it's sufficient so what did all right he they provide the deposition testimony that says he turned things over what did the district court have specifically to review as to what those documents were that were turned over yeah ok there was that i think that dr pasko said that  can document i believe the state even document the documents about the formula she gave the documents that you testified to even document and the document about the formula to the f b i and they h c c us both correct correct to government to law enforcement not even government not the u s attorney there was no communication from mr chancy and what was stated was that dr basco had a telephone call in the purpose of the call this was before this report was determined whether or material fact correct in our position would be just swallow that even in the light most that it's judge i'm sorry it's ok even in the light most favorable to the nonmoving party that a reasonable juror could not find by preponderance only i guess only if you find judge or love that the twenty ten amendments do not apply then it's a jurisdictional question with respect to whether or not mr which answer is an original source so it would not be a summary judgment three options for the district court the twelve b one which would be that we just don't have jurisdiction and if you would have ruled no jurisdiction there is no need to amend if the court says dodgers six and twelve if you had ruled twelve be six it would have been so that we go to that then he converts to was a twelve b and it was a c or was it a summary judgment without any competing fact statements how how do we get to the summary judgment stage without any discovery sure what what i believe the court was doing from the opinion was it was looking at the two thousand and ten amendments and saying first we don't believe that the twenty ten amendments would apply to false claims act and if they don't apply to the false claims act it's a question of jurisdiction as to whether or not he's an original source so th would be a twelve b one and you can look outside of the complaint and then what i believe the court said was even if the twenty ten amendments would apply i'm going to convert this to a summary judgment correct got it and then based upon summary judgment and the standards that we discussed it's not enough what is before him and did he give notice that he was going to convert it to an a summary judgment to the parties well what he says in his opinion obviously we believe we'll know before the pinion i don't it's i sit here i can look closer i don't believe there was any formal notice other than the idea that the district court says with respect to we supplemented the record with excerpts of depositions and which answer he didn't object to us extending beyond and he provided  and i believe he cites a case and i could find it's off to my head where it's the discretion of the court with respect to whether or not notice was applied ok and i i think that you know the question of notice would not be denote what that would be  and the other individual i asked do you represent him i represent britain is before the ninth circuit today i represent so well but i have represented him in other matters ok so asked to dissolve the partnership and thousand perhaps unwittingly didn't realize that it was going to set in motion that then that gave mr so well the opportunity to buy the shares that happened an injunction to the firm of johnson to allow that to happen mr which chance to move to dissolve the corporation and not of the arizona corporations act in a close corporation like this there's an opportunity for the other party rather than just dissolve company the other party has the ability to come in and basically file little put where they have to buy the other party out and then the court if the parties can't reach an agreement will determine fair value we had a fair value hearing in the stake or do we want to say wine so well was a nominal party in fact the state court judge dismissed so well from the matter and that after the end of that hearing the court found basically a five million dollars of a ten million dollar value for the company five million for each fifty percent and allowed inside a payment plan in the in by order and then allowed certain set off for what were called contingent liabilities in order to do that there was a whole process that was put in place i go in more the state court when we were when when the dissolution and this fifty fifty split five million here fight was that part of it the discussion of billing practices that was raised and in fact the experts that i believe spoke about that is in the qui temp complaint they were listed as experts in the evaluation area never testified but these issues or were there the first time i mean the issues were raised they were raised and i think motions we filed motions they filed trying to deal with provide the government with the information that is substantially similar i would say the graveled men of the complaint right and that's very start parting with the district court because if there seems to be enough evidence that believe the complaint shows and i think maybe a disconnect if i'm having one is that the question really boils down to what information was provided first whether or not boston was acting on behalf of the chancy moving beyond that and the question is what was provided to the government and the complaint that your honor is referencing was never prove there is nothing in the record state court federal court that that was ever provided to the government so the question from my perspective would be he clearly and we don't dispute that will say alleged but these actions he clearly had detailed information so when you look at what was put before the state court and you ask what is before the record what a doctor box go based on the record provide the f b i because i would argue that they abandon the i r s claim when you look at the reply brief they stop talking about it after we raise they're focusing on peter saxton right i don't know peter sexton he's that guy right here second is it it's and th if it's in the public domain and if we're looking at for the amendments filing in the state court puts in the public domain so before one can file a quick ten mansion under the statute you have to provide the government with notice of the substance of material of the references which i don't dispute is very detailed and very thorough that was never provided to the government but certainly not before the rest republic of course it was public and there was an article written about it right without a doubt so the issue is not that this wasn't publicly disclosed the issue is w court found i believe correctly dismissed the complaint was that the information that was provided to the government which you know from a policy perspective the idea is you go in and he tell the government so they can investigate it especially when it's public so that the dr about to refers to is the even document and then you also have this reference to the formula spreadsheet and the form of the spreadsheet specifically refers to the excuse that's given by the defendant for how one of these fraud so far in the formula spreadsheet you d n it wasn't on the record right again year and we don't know when there mr pasco didn't he didn't give it to them right well i think he specifically says that he did give it to them the document was not yet in the record at that point in time because again it was very early special agent that he had dealt with so we can clarify her name was sarah harmer she was the special agent with the medical fraud unit with the f b i he had met with her again before the publication of the new times article  just to clarify one point really quickly around and i think is important is that there was a motion for supplement that was filed was filed on august seventh two thousand and fifteen and again attaches that letter that goes back to august of two thousand and twelve which is this communication from mr nelson was discovered i believe as part of the discovery production in the first federal complaint the one that went through the jury trial in two thousand and fifteen and again at that point in time the court was already did not have jurisdiction over this matter because the appeal had been pending and that's the motion supplement was filed in addition i think and i apologize your honour's someone had raised the issue about why the key town was pending in the federal court although some of the issue of valuation was addressed by the overbilling he specifically said no less than three or four times on the record which we can provide and supplement that there would be no purpose of the fact that all of the other causes of action would go on and would survive the valuation but that realize the about what counsel for the appellee said about supplementing the record on a proffer and requesting leave to amend he has counsel for the a poly said the exact opposite of what you said your hon you know it's a matter of record that was filed here with the court i don't have the docket number specifically but i was able to review my records and i have a date of august seventh two thousand and fifteen for the filing of the motion to supplement which included this e mail communication that i think it is centrally establishes unequivocally that defense counsel is communicating with pete's ex then who gets the u s attorney at the time and saying we're aware that mr chance has made these allegations were aware of these things we you know we receive the grand jury subpoena we're responding to all these issues he st district court your honor i to be honest with you i can review my records but i do not recall whether specific motion for leave was filed but the court did address the issue of leave to amend at the end of the order which is in the record i think it's the last point or the second to last point before attorney's fees where he specifically references to even judge campbell i apologize specifically references that leave to him and may not be necessary under those circumstances when did you get these records and why didn't i mean the records that you first the first complaint the one with the retaliation for the sherry duty claims discovery was conducted in that matter and this was produced by the defendant it was an e mail communication by defense counsel through with mr sexton where he's discussing all communication at the time that was produced in discovery later and i apologize if that was confusing in any way you know it's just it's just travel some that the doc didn't have the documents in we can't we can't take evidence as an initial matter understood your honor there's been a lot of difficulty in obtaining discovering this matter it's been a very contentious issue it's been going on since two thousand and eleven and two thousand and sixteen we only got a jury verdict and yet that issue is now on appeal for the