pass against the university of miami and i'm grateful that the court put this case on the calendar to allow vital visions their own version of hail mary here at oral arg interesting opening our well we weren't the problem is you might be going up against statements began with that this case presents several issues that the law students will find important first and foremost to get about of them is that  cognizable evidence if you don't have a proper foundation for whether the evidence upon which you wish to rely how can we do any well and i think that i have given the court to waitress to to answer that question the first way is to agree with vinyl visions of agree with the pallant that under rule fifty six see that the court could clearly have cured or asked appellant to cure the defect because but they didn't but you what you have to argue is that they had to the district court had to permit well no i mean i  that evidence and support or opposing a motion for summary judgment be cognisant on the federal rolls and i mean the purpose is obviously that that that counsel comply with the rules of evidence in submitting but more importantly i think is that that that here in st the rules of evidence is really designed to make sure that when when you are nearing the end of this these pretrial litigation that you don't come up and not there i agree well the information is there what's not there and gotten well what what's not there in the doctor mercer report are the magic words this  own personal knowledge and i wouldn't competent to testify at trial not there is him swearing under oath that's what's not there you introduced an expert port that he's unsigned not sworn to i mean look you seem like an imminently reasonable fellow i'm certain you did not make it up however in the absence of sworn testimony by this expert you know maybe that was a draft report swear under penalty of perjury and sign on the dotted line and so here all we have is what purports to be a report by him and one signed report and and it's not council's statement i  understand both of those points but again are the rules that type i don't believe the rules are that mcalary well in this in the technicality i'm putting it in the technicality in the understanding and yes they could have come back with a motion for a hearing and if i was controlling the live a geisha and i would but let's move on obviously it's a tough sell i understand that the standard of review is the third lesson law students need to understand when they were approaching the court of appeal and yes any evidentiary issue is going to be decided by this court on an abuse of discretion standard but again my argument is when you when you match that up with the policy of trial on the merits and you look at the context of where you're making a rule one argument just speedy  determination if you if you would have it that way or other but let's move beyond that for a second and let's move to the claim construction issue relative to the evidence that was properly in front of the court but was really not considered and to me what's noteworthy about my colleague's brief is not what he says but what he doesn't address in his brief which is much like  prior case that we just heard this afternoon the admission from mr omer himself that the product was functioning in this and designed to function in the very same way as a vinyl visions function which is that the workmen can there the the vinyl the tram the window tram without the need for specialized tools which bad up the whole process that evidence was was in the record and was before the court and although he met the did judge judge had a mentions it in his decision he really gives it no way it at all and doesn't appendix i won't waste the court's time right now trying to ferret that out but clearly they that there was that that was mentioned in the opposition that vinyl visions filed to the summary you mentioned the defendant's website and i was trying to wreck my brain i thought i remember the district court says that those websites were also an authenticated because they were simply included in attorney declaration so this court writes an opinion that puts a full measure of the burden on the appellant's count trial counsel then we will live with that because that may be at least give rise to a different remedy for my client to be honest and candid with the court but absent that i think if we're talking about truth and this court does grant the or does a review dean ovo summary judgment decisions i don't think this court can look at the four corners of the joint depend vic's including dr mercer's report and all of the other evidence still matter how shabbily it was attempted to be presented and come away didn't contest on from an authenticity standpoint was the the portions of craig on these testimony that was submitted but on that point it's important to note judge hat er alludes to it in his opinion but what is very important to note here is only a portion so there are multiple citations to crego mees deposition testimony very little of that testimony was exact time because a website can vary from moment to moment right and so we really then on syria tallies at that point would be arguing ok so let's look at you know what are these pages and when did you know when were they taken and where did they come from so again that would be over as to certain portions of the ink an expiration of the augustine declaration it's so important to note that there are glaring deficiencies in the claim charge there are multiple elements that have no citation to any evidence so even if some of the evidence were somehow to come in there would still be elements that there was absolutely no citation and it was purely it was it was simply an argument exactly mr hanken saying we and my client inference and so there shouldn't shouldn't do and it's discretionary and of course it's abuse of discretion and the court is not obligated to pore through the records it's not obligated to do the attorneys work for them so yes the judge had or could have done that i'm glad he didn't do that and certainly survive summary judgment and and when we talk about abuse of discretion we have to talk about it in terms of some standard and i understand we didn't ask the judge to do but when the judge has so much evidence in competent or not in front of him that suggests that we have a real controversy and if it's in common well it's been incompetent because of for me not because of substance  the date of the deposition had all the other pages but they forgot to submit the first page and nobody contested the band's grand but the court ruled it was an authentic and so excluded it and said therefore have no evidence on summary judgment in the ninth circuit said it wasn't going to be rushing to do that so it doesn't seem like i get to choose to do what i want here i have to put myself standing in the shoes of the ninth circuit and they're not too friendly about these for a technical violation and then again you know i'm by predominately do criminal appeals and i'm always arguing technicalities because that's what we live on but this is a broader sir technicality excluding the evidence or presumes you're still innocent but regard list i think in this broader context with the policy underlying trial on the merits it's an unduly harsh