system and courts overwhelmingly imposed default judgments on liability i don't let me stop you right there you just used the word overwhelmingly courts overwhelmingly and in your brief i belief you referred to a consensus of opinions anything less than or all judgment in a case where the spoliation extended to the same number and the scope as it was here how many of those are presidential opinions  looked at your string site and it appears that most of them are district court decisions so most of them are district court decisions fewer of them are a court of appeals this really isn't there's some tension there some inherent tension given the standard of review that we have here of abuse of discretion that we have cited for us non presidential opinions exercises of discretion by district court judges largely you're urging those for but a district court judge in delaware exercised his discretion in a manner contrary to what you urged upon him and what you're suggesting now should have been imposed one judge does one thing one just judges judge does another based upon all the circumstances that are before him so there are several of the cases are  there was a high degree of fault and very serious practice and the court cited schmid and and set forth the requirements that you had said and that's correct but the last two factors and schmidt there the question is whether there's a what the judge said here the only thing that the court said about why an adverse imprints would avoid substantial unfairness was that since some of the content of that leader e mails had been recovered the jury could make reasonable inferences about the likely content and that's go couldn't do it are you suggesting the jury could not draw such reasonable inferences i'm suggesting that the jury would just be guessing and that's what the district court said later the jury would have to make its best you mean there was no evidence there that would have supported the drawing of an inference i'm saying that the jury speculates when there is no support for the drawing of an inference wasn't there something within those seventeen facts that judge starr gave to the jury from which a reasonable inference could have been drawn that there was intentional spoliation here there was absolutely extensive evidence according to the fact of drawing in front of the problem is that the jury that your for this judge decided i'm not going to make this determination i'm going to do what our system usually almost always requires and that is that we let the finder of fact the jury make this determination i'm going to give them some stuff from which they can draw that inference wouldn't you love as a trial lawyer and i i don't know whether you tried this case whether someone else did i can tell you i would love to go in front of a jury having even those several facts among the seventeen and argue to them about what this terrible person he is did employed by this terrible company plantronics did in the wake of this hold it in that pretty powerful do you think the jury's going to ignore that i think the jury had plenty of evidence from which it could have sad one that it should drive ever since but the problem is that it didn't know what e mails the destroyed e mails would have said and the scoop of the destroyed e mails extent of the bad faith and the extent of the spoliation it was an abuse of discretion to exclude the facts that would have supported back to terminations and the district court basically said that the facts that we wanted to provide to the jury would be too inflammatory and that's completely inconsistent with the district court's theory in awarding the adverse and prince is there any more quintessential area of discretion to exercise by a trial judge then a four zero three type ruling which says i am not going to let this proceeding morph into something else i'm not going to allow a collateral issue to distract the finder of fact from the merits wasn't that what the district court explicitly said he was doing was not going to do it here rather that is this is an anti trust case that a man i trust case is not the stuff of an ordinary citizens regular day to day activities and so rather than allow the trial to move from the issues relative to the antitrust proceeding he was going to abbreviate rather than get into an extensive more than merely trial is i mean isn't that what discretion is all about not when the district court to rationale for doing an adverse inference in the first place was that the jury had to decide whether there was a massive cover up if they if the district court says i'm going to let the jury decide whether to apply the adverse imprinted  essentially what one expert estimate and what another expert estimates no your honor so first of all in the in the fact that the district court rag about the number of deleted emails what he said was that  it's possible that the number of deleted responsive emails was a few hundred or even less or that it was fifteen thousand that a few hundred or even less no expert said that plantronics expert its lowest estimate was nine hundred fifty two evidence that the jury has a say so usually what the court was trying to avoid here wasn't i mean he was saying we don't want to get in to a trial on this collateral issue and have evidence presented at length a battle of experts who would have been at odds there was some commonality in there or in their opinions but that's what he was trying to avoid paklin true your honor and that's an abuse of discretion where you've said that the reason we're not going to do a default judgment is that the jury has to that and that was central these were all of the facts that the district court relied on let me ask you one other question about what occurred here per the district judge  exclude testimony by their experts about for example the number of plantronics only distributors because a lot of the destroyed evidence would have gone to that number there was a lot of disputes about it we moved for other evidence or extensions because they seek to do any additional discovery he considered the potential for additional third party discovery and said that it would not be addressed or prejudiced us and you're not i want to i want to go back to the deterrence question because that the schmidt case says that it turns in case of serious fault which this was deterrence is a explicitly considered it i citing it mentioning it seems to me to be an explicit recognition of the existence of that factor this court said in cases like sandman that a district court exercising its discretion has a duty of explanation and the district court did not explain how anything other than a judgment here would deter future misconduct and i think it's important also to think about the fact that plantronics its c e o and its lawyers they refused to investigate they knew that other high impacts and you know courts you it's not good it's the drawing of the ed first inference and according to you is dependent upon the extent and volume spoliation emails is that what you're suggesting yes or are that certainly a very important factor in dr who the dumbest thing that this jury of folks exercising their common sense are not going to conclude when they have been instructed by the district court that there have been certain e mails destroyed deleted in litigation old they're not goons for the worst they're not going to be suspicious they're not going to have a basis to draw an adverse  about what we expect from finders of fact folks selected for a jury who bring their commonsense every day experiences and they have been told explicitly the defendant here defending against this antitrust action has destroyed evidence and they're told that it may be suggestive of an improper motive and that they may properly infer that you don't think that those folks are going to be pretty suspicious based upon what they've been called i think that we were entitled to present the best evidence that we had just like for any other factual dispute in this me i know there was a lot you weren't able to present because you didn't have you can guess but you were able to present your case and you were able to present  they made sure that their distributors only dealt with their headsets i don't know what else you're going to power on top of that other than to say these people were bad people in a discovery  some of the key disputed questions were whether the distributors were really free to terminate these agreements and imagine that want to destroy e mail said you know if if you if you don't agree to this we're going to cut you up my tracks as a percentage of the of the of the market they're in charge of this planet someone in your testimony to that effect some of the emails were pretty close to that but her maj and there were twenty more e mails one for each distributor or imagine there were e mails literally reporting on conversations with distributors saying  saying you know i went i told them will cut you off if you don't agree to become a part of that would have been incredibly important evidence for the jury and that's why courts were after court and i realize many of rick cases we center district court cases but if you read them they all say illusory but it wasn't that these pods were being coerced into entering these agreements and then could not ended at any point in time the testimony at trial overwhelmingly every third party that testified pods and not pots testified that they were not coerced they were not forced to enter into there is a synergy is the testimony was the trial of your honor particularly in this particular area of the economy we have had sats have very unique features by having the synergy this relationship building a loyalty with a reseller that value added service at the reseller can provide by having the exclusive deal arrangement is furthered by that relationship there are a sales leads that are provided to those individual p o d s because of that level of loyalty there is restocking that occurred under the agreement so that there was and then secondly under the terms of the agreement the agreement itself only precluded direct binding of g m products from g m i thought i thought they were also preclusion about advertising other both the direct line restriction and that advertising restriction were changed that there was substantial testimony also about how that didn't impact any causation and was after the period that was after the period boldness complaint was it not that was after the complaint was filed twenty guaranteed that's correct for the time period prior to that for the agreements that were entered into the amendment there was a drop by a restriction and then the second restriction your honor correct there was a marking restriction although the users and buyers that are buying this product no disrespect to the two and a half year old but these are folks that they really know what their source if they really know what they're buying they don't need a catalog they don't need that type of information marketing to them they know what's on the menu and we even specifically asked when when they tried this case down below your honor we asked that very question of the end users to testify were you aware of g m products were they on the menu and they all said they were not on the menu i words they knew it was there they were fully aware and understanding that a reseller could source and in most instances did source both g n and plantronics products because they were a bowl of the dominant headset m plantronics absolutely does not defend the actions in the sense of the believes were done houston did was appropriate there was a litigation will evolve later that whole it was an improper act on his part to delete those e mails and plantronics was significantly sanctioned i would submit by the court for that the court did not take it lightly did they ask is i couldn't find the answer in the record that the jury the jury learned that trial instructions and in the spoliation stipulated facts that there was an intent to deprive by done houston and that this adverse inference is in essence being ordered as a part that is my understanding as to how the pretrial structures were worded your honor that there was intent to deprive i believe the court even used bad faith in play had been prejudiced and that these stipulated facts are as a result of that spoliation and they were didn't do it explicit ballots and guess what i would i don't completely agree with that you are the reason why is the request for gallup and to testify at trial was never made so after they represented there would be one to two hours of spoliation testimony that would be introduced to the jury that was their proffer even after the july hearing that we wanted to be heard and we wanted to brief the issue of the extent to which mr galban would in fact opportunity for the court to explicitly about the brief that was filed they filed a brief that reiterated their desire for a live testimony there was a brief that was filed after the july period or took two things i would say that your honor number one to have indicated in it in a footnote it was in a single footnote that they believe that they had preserved issue i'm not aware of a case that says that a sufficient or one of three for preservation of the issue but i would say secondly that reference is not about gala band test upon that was a statement about preserving the issue of objections to the general use of the stipulated facts and their desire to want to do all of that through witness testimony not stipulated facts  some witness testimony which is how the court ultimately ended up pristine in his discretion so i would argue just still further i apologize your honor is even if it wasn't explicitly considered it most certainly was implicitly considered in the sense of the court made clear did not want spoliation to overtake the trial did not want there to be unnecessary delay and in fact the stipulated facts were going to solve that problem because there was such a substantial amount of those facts that were going to be  with respect to communications from houston or other sales people or or employees act plantronics with respect to the i mean i understand that if there was destruction of the houston e mails you can't get in the batman but what about at the end how about the recipient the addressee t available i think an important second point is with respect to third party discovery in this case there were one hundred seventy five thousand documents that were produced by pods and non pods of this case don houston was on ninety nine of those e mails by my math that's point zero five seven percent of the e mail production was e mail were done houston was to from or see seen on third party e mail their theory is he was extensively coercing all of the third parties so there would be all this information supposedly in the third party coppers to prove it and it just did at the risk of seeming to oversimplify are the two positions of the parties here polar positions that is the point of saying there simply wasn't enough these were stipulations led to the jury presented to the jury to allow them to make a reasonable inference and your position that there was some and that's sufficient and the sum the amount that was provided with the determination made by the district court and it therefore did not abuse its discretion it does it really come down to that simple  oh i would add something more to that your honor in addition to that calculus our position is difficult did in fact even beyond the seven hundred stipulated facts which were very powerful facts there was substantial evidence that they were permitted to introduce introduced into evidence to please delete e mails there was significant evidence is my position your honor not just the stipulated facts but evidence that they were permitted to provide and submit or for whatever reason chose not to that judge starr also made available to them that was a part of the record from which the jury could of course make the inference in balancing all that i think what is important this is a j a fifty four of a judge starr had done here your honor is in his new trial where he summarized all the evidence which is why i believe the any trust merits are important in this particular case in doing that particular balance he found after looking at and considering the substantial evidence point tronics presented at trial as well as the evidence sanctions the district court seemed to evaluate whether what the impact of a lesser sanction would be on a plane and tonics your client whereas it seems to me that schmidt said that they should look at what the fairness to plantronics which i would submit that's the whole point of fashion in the least sanction a possible the court was also looking to try to fashion something that was fair to g m hence why it invited in permitted g and for example to file first time it with respect to the mandatory inference their argument is that gonna houston's when he started with that question and you said no that's not was it was an issue here which is you who is an evidentiary sanction that's where i would i thought no that is in my point is the requested relief that they're making on the mandatory inference i think is informative of answering your question iran or which their whole argument is the the information that was destroyed that was in donohue houston's email would have touched on the issue of could have sought pretrial and asked for now of course we would have vigorously denied that because they took third party discovery and then shut it down and that's the joint tenants page five sixty six when they didn't get the answers from the p o d s that they want they wanted to hear that they were being coerced and the overwhelming evidence was that they were not willing to give to say to that again i believe it's five sixty six the rubber corp declaration that was filed in connection with the sanctions motion your art and the important point there would be your honor i'm just using that as an example that if there was some information that had come to light during the course of third party discovery had they not abandoned it that was precisely what judge sort was passionate as a further evidence discovery why why isn't the faulty why wasn't the fault judgment the right remedy here really would be the first this would be the first court the granted a default judgment might not be a consensus but we certainly would be the first chord i would answer that in the fall in five ways number one the where opinion i believe is instructive here that because this court now thinks or another court thinks that another remedy was the more appropriate one does not mean that the court abused its discretion i would say secondly in the context of the cases the vast majority of which were outside of circuit district court cases your honor those involved product the fact product liability cases were the most central piece of evidence for example the battery in a battery defect case a car in a crash worthiness test product liability cases were destroyed went to court in those cases found for example that it was unquestioned without any question at all but the most central evidence has been destroyed there was no such finding here in fact the court found the opposite and the court found the opposite in distinguishing the micro which was a case in which there were seven hundred bankers boxes of documents that have been destroyed district of delaware and the court said unlike that case we actually have some of the e mail that's been recovered are always actually produced in other plants e mail boxes because of the extent to which plantronics produced four million pages of documents and because of the third party discovery that was also available in this case so while i'm not defending the spoliation your honor as to what don houston did i do believe this case is much different than a lot of those other cases one of the case that we actually cited to i believe this is instructive here on how there is no routine this is a highly discretionary highly deferential rule that's left to the district no technical e mails that were actually produced in that particular case and that court only ordered an adverse imprints so while again i'm not defending mr houston's actions he violated a litigation hold should not have been done but in the context of rule thirty seven in the context of a court trying to fashion a remedy that it will lead was appropriate under the circumstances i don't believe the last hour which is a routine or a consensus nor that the judge if we did not agree with you that there's a consensus here upon which we can rely on it are you are you asking eyes would you ask  to shape some kind of rule that ought to apply or if we cannot do that how can this court provide any kind of guidance to the the cases is that there's a wide ranging destruction in bad faith it's a complex case the destroyed evidence goes to a wide breadth of topics in the case the destruction goes to the highest levels of the company total extent of the destruction i think the court should say that in that circumstance it's an abuse of discretion not toward a default and this court has an important role to play this these the issue of sanctions goes to be integrity of the judicial system and the entire principle that i don't think anybody has mentioned up to this point but ought to loom large here maybe it's even the elephant in the room  system has a very very strong preference of people deciding cases on the merits as opposed to default how does that play into the equation made that impossible it was impossible to decide this case on the merits because plantronics destroyed the evidence that we would have relied on and mr dean said you know said that some of these other cases involve physical evidence many didn't and the bottom line is in a complex and i trust where you know they suggested why don't you go to the distributors but the distributors depended on hand transfer their supply they were going to testify orally that was coerced memo and the fact that the fact that you know some of these e mails didn't turn up in the files of the third communicator from the federal circuit that we site on with other courts of appeals cases cited in our decision that expressly say that when you have document a structure of this magnitude and only and it was only twenty two hundred files when you have document destruction of this magnitude there just isn't a way to have a fair trial even with an adverse impacts and if i can turn just briefly to the second issue in the case about the about the exclusion of evidence on the supplemental sanctions issue the district were denied our motion for discretion to exclude relevant evidence unless it's that's the prejudice the unfair prejudiced substantially outweighs the relevance and i didn't hear any argument from mr dean that the prejudice from this excluded in other information like that and there's just no question the court cannot say that it's highly probable that the jury would not have applied the our person prints or that they could have come to a different result if i had the permission and i just like to close