has been going on for quite some time and i understand i was involved in a the trial court cases and and it's not acceptable what happened but that being said i don't think the district court followed the law of the circuit which is what happened the first time despite the district a district court was faced with this semester and was required to consider the five factor test which included malone which has a three factor test whether lesser sanctions were available that was the key issue in the m s j we're not disputing the first factor district court basically said let's have an amnesty on the two issues that this court issued a mandate there was never reopening discover there was never satisfied with it was let's go look at those two and what the court says oh i look at a lesser sentence at that point the was supposed to consider the three factor test them alone but never implemented just said i found lesser sanctions won't work and just dismiss the case again and so the court never said these are some alternatives and i reject them the court never said this is what i'm trying and i've tried it and it didn't work he never tried it he just missed it the first time this court said no that's not ok we just allow i think it works and just missed it again and he never said i don't think he has to try it first yes explain why le sanctions wouldn't be adequate in the case which was not discussed i agree the court was required to do it and the three factors look at all three of them and they didn't do any of them because at no point you said well this is what i'm doing are going to thirty days to do discovery if you don't disclose the damages but this court originally went back and said well no just because there was no damages disclosure you can't throw out the case which means that they had to give them an opportunity to remedy that situation the dish court didn't say let's have a c m c let's open discover that you have an opportunity now to disclose that to date there's been no documentary damage just disclosed but what you are saying is that we could show it some other way to their testimony or i suppose in a breach of contract are you phenomenal damages or something along that line well initially in the original attorneys from years and years ago said that they disclosed evidence that they believed to be documentary that supported damages the the defendants argue that it is not supporting the damages and the district court when looking at  agreed so i think at this point new damages documents have to be disclosed so i agree it wasn't one hundred percent done but there's been no opportunity in the last five years to do that once this went up and went back out as a court just jump back on to the two factors without saying ok i'll give you the opportunity or what your damages are in the declaration who's your testimony because that had nothing to do with the on the rule sixty the court says well whether i made a mistake or not it doesn't matter you have no damages evidence as of now b had nothing to do with the i'm mysterious and it's improper to after the fact then go back and say well this has nothing to do with sanctions this has to do with whether you have damage or if it's just moving the ball which was not fair that point the other problem is the district court in deciding whether it was lesser sanctions years ago that's how this happened and so the district were saying well ok i just find that you just don't follow the rules but was considering other cases years before and also considered actions that have been years after that explosion if he's looking back and say well  thousand and thirteen there was no i find my decision was fine the first place how can you look at what happened three years later it's unreasonable to think that your conduct three years later in a different case with a different lawyer and a different entity would be held against a different party a different entity different lawyers in a different case and so the ninth circuit is made clear when a district court considers evidence other prior discovery evidence it has to be and of the same type in nature otherwise it's an abuse of discretion and there are plenty of cases that say that no case is set and we can consider it by different entities with different lawyers and different parties in other cases every single one of the cases i cited the district court didn't cite any of the defendants i could not find the kids were that where it was proper to consider evidence in other cases and other cases with other parties that just happen to be related that's the point of the corporations are different just because you're related only doesn't mean that a state court case outside of the federal that years before years after should be considered  entirely if you look carefully at the record which i'm sure this court will the very fact that there is no damages evidence is dispositive and in the interests of judicial efficiency  judge wright should be permitted to make that kind of a judgment they argue that they never had a chance to present evidence but if you look at would judge wright did in his december seventeenth tw order he said here the court finds that it would be aided in spreading the mandate by our re briefing of the issues and by presentation of any additional relevant or clarifying evidence he asked them to bring us he could have just simply taken on remain and considered on our sales talked about the availability lesser alternative sanctions and been done with it he did not do that he reopened the matter so that they could briefing could happen and even in spite of that opportunity they didn't come forward with any evidence so that's why i say their arguments elevate form over substance when you start looking at the form in the nuances with respect to what their arguments are it's it's saying they didn't apply our sales correctly meaning the judge didn't explicitly discuss the availability of alternative sanctions  they cite them alone opinion which talks about a preference for those being discussed but there's no explicit requirement for such discussions and here where the judge has a history with the parties   availability lesser sanctions and whether the conduct was willful or in bad faith so was that an open invitation to reflect to come forward with the damages evidence that  it originally failed to produce i believe so and if you look at that what the judge did consider although they make a big day of the fact that their opposition was excluded for lateness the reply brief which we filed includes their damages evidence  supports consideration that you have a case that you can fact to me i do not have a specific case i can cite to you what i can tell you there's no law that supports that look well look into other conduct in other cases keep in mind that the conduct in the other cases even looking at dolly you know i mean this is not a state bar disciplinary proceeding it's you know moving this case forward right i understand that but the conduct that he was looking at was the preceding case to this case in his very same court room with the very same parties so what the second case was about were is a breach of their settlement it was from the first case that you know them you know these parties well sufficient basis even if it's not a sufficient basis he still looked at the conduct that happened here which is that they follow the lead brief that they didn't disclose any documents that they exhibited in his courtroom he believed they wouldn't work based on his experience with the party showing who are who are it is sort of you have to give me a minute to gather in your  i think my point is that my read them alone is that explicit discussion isn't required it's preferred and even if judge wright didn't explicitly discuss such it's a preference not a requirement the other issue whether that shows proper consideration of the attorney dave of lesser sanctions the district court's explanation was that lesser sanctions would be ineffective as a deterrent because of the party's continued disregard for the federal rules of civil procedure and that's on the last page of his summary judgment order so that's the analysis but in concluding that the parties continually disregarded the federal rules of civil procedure  district court seemed to rely on other cases as establishing a pattern of disregard for discovery rules and court rules such as filing summary judgment late and so forth so that then gets back to the question of whether it's proper to consider other cases i think you considered more than other cases i think he considered the conduct in his own courtroom and if you look at some of what he cites there's also the conduct that happened his own court with respect to this case which is one no documents were ever produced not a single document to they filed their opposition later he saw the same pattern of conduct he saw before so while he referenced prior cases in his from his courtroom i don't think his ruling was based soley upon just the conduct of prior cases it was also based on the conduct here one of the most commonly considered lesser sanction for discovery violation exclusion is exclusion of that evidence so instead of dismiss the case which is the ultimate punitive sanction he could have said ok well if you didn't produce evidence of damages then i'm not going to permit late disclosure and then the parties can either you know proceed to briefing summary judgment with what they have or proceed to trial without or with inadequate damages evidence was they need discussion considering that particular sanction there's no explicit discussion by him of that particular sanction what he did the dirty east any request by the parties they did not file a single document request or make any effort to to disclose the additional  damages evidence that was brought in on the motion for summary judgment in their opposition initially cast the past the fact is they were cut off if you asked for that as a lesser sanction that we did not the judge looked at that evidence and fully considered it i recognise that excluding that evidence would have been an option but it would have been back to form over substance it would have gotten them through the same result which is that it was insufficient evidence to prove damages thirty three fed second page five is that what you mean three fed second one twenty one to eight yeah ok go ahead read it to me we have indicated a preference for explicit discussion by the district court of the feasibility furthermore it depends on the thompson thompson doesn't say it's a preference or not thanks thompson for these factors right thompson doesn't say these are preferences are they not and not requirements it says we have never hel no thompson he's citing people versus rhe is what you're saying is the your position is that the district court's failure to consider the five factors explicitly is not a ground for reversal that your position my position is that he was not required under this president to discuss the availability of lesser sanctions explicitly or lesser sanctions just one of the five factors  malone said the district court must weigh five factors in determining whether to dismiss a case for failure comply with a court order goes on to list them citing thompson right in the fifth one is the ability of less drastic do it it makes a case meaningless to  i think i'm out of time so i'd have to let it rest at that unless you have a question it is a preference consideration of those factors are required but in hamilton's little explicit discussion may not be required well first of all the five factor task original came from one the court did not on this limited issue limited issue with a view to the lesser sanctions and the two issues from this mandate it was not oh let's talk about damages and witnesses and everything else for the case the order was explicitly limit and i don't believe it was an invitation to just start dropping in other things back to the point i have found and nobody has cited the kids in serious consideration of conduct in state cases by other entities or other parties with other judges can be considered defendants point out some of it was from this case insufficient how do we know what if you consider one thing from this case and threw out the other twenty things maybe the court would have acted differently also again considering even things from this years ago there's no way that you can know i'm not due process thinking well in a case i was say that it would be helpful to the court if you brief any additional relevant or clarifying evidence so that was your opportunity to say hey this missile is a really trust the grammar there's lesser turnit as this is our evidence of damages and that's why it's so drastic to do dismissal but despite opposing the summary judgment late you still didn't come up with evidence of damages in the court the district court was swayed by that so what's what's wrong with that the district court said hey i'm getting this case back from the one circuit the ninth circuit said i erred in failing to considered less drastic attorney dave's brief it bring the evidence for it so that i can now explicitly consider the opportunity to brief it and in doing and they point out they submitted all the damages evidence and reply another violation you cannot submit hundreds or thousands of pages on require one m s j without giving the other side an opportunity to say oh you have an hour