mr brooks actually delivered the notice of appeal to the district court and to opposing counsel on the day it was is due the only issue is whether by sending the notice of appeal by email whether that was enough to sufficiently file the notice and there's two reasons that show that it did the st is federal rule of civil procedure if i did see two which says that something is filed if it is delivered to a district judge who agrees to accept it for filing and that's what happened here the district judge demonstrated throughout the litigation a willingness to accept email filings from mr brooks and one point even went so far as to rule on e mail filings before a hard copy had even been received by the clerk's office and that's important for two reasons the st is it shows the district court's willingness to accept these e mails filings and it also shows that an e mail filing alone was enough to you know get on the docket and be a filing such that the court was able to rule on the and how often did that i mean reading your opponents briefs they portray this is really the judge just creating a methodology for courtesy copy and insisting on a regular mailed filing and there was this one time that you're talking about where the judge goes ahead and rules before the post office catch up catches up but how much are you really revolving on the judge's instructions to mr brooks or you're relying on the fact that we have this at least one incident in which the judge accept the emailed filing as a complete filing your honor it's both because both of them demonstrate that the fact that this did occur multiple times there was that that docket entries forty eight dollars which was the filing that the district judge ruled on the e mail filing which as you see calls a courtesy copy but it was nevertheless a filing that the judge was you know it was officially filed such that the judge could rule on it and then there were additional instructions at other points during the litigation where the district judge asked mr brooks to send a filing by e mail so you know it wasn't just that one incident there were multiple times throughout the litigation when the district judge asked for the filings so so i need to break this down into two steps i think because part of your argument relies on the sufficiency of an e mail filing but then there's a nd aspect of it who got the e mail you know if the e mail had gone to the clerk's office we might be talking about a different we need to get the e mail ok and we also need to somehow justify the fact that it went directly to this pending orders mailbox that the district court kept as opposed to some other thing that would alert the court to the fact that something this is important as a notice of appeal is sitting there in that box correct your honor the that's where the district court's pattern of accepting these e mail filings is important because this was an incident you know this was the st time that mr brooks had tried to send something to the district judge by e mail this was you know something that occurred multiple times including to this specific inbox and so that's why you know mr brooks you know reasonably expected that the district judge would receive the filing because he had received these other filings in the same in normal procedures of mailing them ma'am that's certainly true your honor but the reality is is that there are numerous examples of throughout the federal rules where the courts do not require perfect compliance with you know to file the notice of appeal but this court held that that kind of error and what in the manner of filing was not enough to feed its course jurisdiction and in fact the facts of harby were quite similar to the facts here the li with that have been sufficient yes your honor because it was the e mail that was the instance of filing here aren't you shifting a burden then of putting a burden on the district court that if a court gets email filings that the court then is required to file that that kill you or me what the the procedure is certainly not in every case your honor but it's because of that pattern you know request going not only accepting all filings but requesting them during the litigation that is what what makes this the filing in this particular case and that's because you know the whole honor because when you say when you say pattern is what makes up the pattern the docket what occurred instructions to e mail that at least a company documentaries thirty and sixty i think it's very hard to read that the instructions is establishing a pattern in practice that e mail would substitute for filing with the court your honor it's again it's those instances in combination with the statements that the district court made to mr brooks in open court and if you don't mind your  turn briefly to the merits of the district court here sanction mr brooks for one instance of conduct and that was at the end of it up a one way this is deposition mr brooks said something about going to atlanta impose the sanction of dismissal in the st instance because of a single instance of conduct but what i say sycorax indicate though that he briefly i will grant you that the court indicates that lesser sanctions didn't seem to be out there i mean certainly mr brooks is not a person who is going to respond to a monetary of sanction and holding facts against him or doing some of the other things that that are and in the tool box just the court decides are going to rise and courts do have the ability to choose your own or i would i would submit that there are there were other alternative sanctions available to the court this was a disk you know this was argu discovery violation and there could have been some sort of proportional discovery sanction constructed and what the district court did was it declined to consider alternative sanctions because it said mr brooks had did not propose any and that pleases you know and in addition to that one statement and totality of other you know conduct that mr brooks allegedly engaged him but looking at what this actual conduct was it's things like snide remarks or intense stares or argumentative questioning and you know many members of the bar in gauging these types of behaviors as affirmative litigation tactics so it's pretty exciting though for i mean it doesn't happen every day where a court reporter so troubled that they won't return to day two of a deposition i mean that that that's not an everyday occurrence in law practice that's true your honor and there's the it's very likely that these witnesses did in fact you know feel uncomfortable that there were you know aggressive tactics going on here but if those were enough to  on behalf of the f c c wireless arguing the jurisdictional issue of this court does not have jurisdiction over this appeal simply because appellant undisputedly delivered his notice of appeal to the district clerk after the thirty day deadline is the problem that it went to the judge's chambers as opposed to the clerk or is the problem in your view that it was e mail as opposed to snail mail the problem  view your honor is that it was e mailed e mailed to the judge's chambers does not constitute a proper filing when they're not and i might question in break it down is the problem i mean think of all of the adjustments we've made in the period of co g lots of things are happening including this argument by remote technology so i want to know whether the problem is flat out the use of e mail period no matter whether it went to the judge or to the clerk of court or to you know anybody or is it the fact that the recipient was the judge's chambers as opposed to the clerk if the latter your honor as i believe was alluded to earlier had the appellant emailed his nose of appeal to the clerk this might be a different case and the arguments made by amicus counsel under rule five before might have some merit but here the e mail went to the judge's chambers it was not ever agreed to by the district judge or instructed by the district judge that filings be sent to use his chambers email so that did not i'm sorry before we even have any docket entries the judge instructs or or says that is that he actually wants the email filing at a particular an e mail address understand the difference here and that's evident by the fact that every document he did file in the district court case was mailed to the clerk so on on one occasion there was in docket forty eight the district judge post evidence free hearing risk on both the five million and also by e mailing of course he does the same thing with the notice of appeal the only reason we're here is it unlike most mailed things notices of the people need to show up by a particular date and you know the receipt date not the mailing date that basically matters but do you get some sense from that that there's a hierarchy that's a mailing one is the one that really counts  doesn't it's regards to specifically back in sixty i get the sense that as was the case that for every filing he was to mail it to the clerk and then send an e mail copy to district judge and it's also important to note that mr brooks didn't file anything in response to dr thirty and sixty so he it's clear that he understood the difference between affecting a filing by mailing it to the clerk and sending a copy to the judge and he did in fact mail abuse notice of appeal to the clerk understanding that that was the way to file as he had done for every other document he just simply did it that's the thirty day deadline and that time used a restriction all  egregious enough in order to impose the sanctions a federal court must st find by a preponderance of the evidence that the culpable party willfully of used the judicial process and otherwise conducted the litigation about fake after making that finding the singular threat and while we disagree we would note that opposing counsel has failed to provide any case law to support a finding that it cannot dismiss as a part of the sanctioned for a type of given a warning here well i think that representation that this was all done based on just a singular incident is inaccurate given the record in this case jacking it that may be true but that's different than a specific warning if you do this again the court will dismiss or may dismiss your case with prejudice i think that goes judge to the question of whether an at the sanction was reasonable in this instance and the question of whether there was an alternative sanction that would have been more appropriate and as judge would point it out judge shang to go out of his way to discuss the fact that there was no appropriate lesser sanction given that money was not a viable option for this procedure but again and that short of having armed guards present during each of the depositions there wasn't any sort of warning that would have been affected in this case given the severity of the threat that he made towards one of the witnesses and the way he conducted himself here out the other depositions but you know what is on the other side had the court issued the kind of clear warning the judge saying use talking about assumption is that mr brooks would not have changed his behavior at all but i'm not sure that that's realistic mr brooks may have realized he needed to modify his behavior and behave himself and i think view of that was that he was uncomfortable taking that chance given the real threat to the safety of the individuals involved at the depositions including myself frankly and that given their legitimacy of that fear and that was know cut much of a break here or exercise discretion in the other way and you know in perhaps in no small part because mr brooks seemed to be lasting candid about whether he had received the notices about whether he was going to have to be there in person or could do something by telephone judge chang made an express finding that mr brooks wasn't being truthful about the notices that he received from the district court in your view did you think that may have influenced his judgment here as well i think that certainly is part of it i think that way in which he conducted himself throughout the entire motion for sanctions process also informed his decision as the record reflects judge chang went above and beyond the call of duty to provide mr brooks ample opportunity to participate in the motion to provide witnesses in defense of the motion to appear in person for the motion and he failed at every turn to do that including and then when he did produce a peavy a telephone he was very contentious with each of the witnesses he was quite contentious with court he was very aggressive towards counsel and so i think it all informed his decision and and for all those reasons we believe it would be improper for amicus counsel to enter pose their view of what a lesser sanction would be and that it was completely within judge chain's right to exercise the discretion he did and to his really should not be overturned thank you all right thank you i think you have a bit of time left not much as jonathan thank you your honor st the issue about sending the e mail to the judge versus the in adopting that rule the rules committee considered cases where the notice of appeal was sent directly to a judge so the fact that it was sent to the judge versus to the clerk doesn't affect this court's analysis so for those reasons this court does have jurisdiction and it should reverse the district court's dismissal of mr brooks this case right thank you very much and we appreciate the distance of micus and also forced the arguments of the other two