that the court has them in mind one is procedural and the other is substantive slash practical the procedural one is in full view at pages sixty six and sixty two of the record at page sixty six then district judge sullivan and rules of here and they make very clear when one wants to make a motion what steps one has to follow and what one is not allowed to do no party shall submit a reply letter affidavits in exhibits are not permitted in connection with promotion letters without prior written request and permission i was nonparty seeking to intervene and i put in a promotion letter i followed up with the court by calling a few times i was told no other papers to put in by me there were papers put in by there were letters put in by the other parties the parties were already in the case i was told do not put in any more letters if the judge wants  arguments judge will let you know and i think it was about a month after i first made contact with the court that the judge issued this decision and i'm page sixty two there is language there that was particularly striking to me it says indeed  such knowledge and yet offers no explanation first delay in filing this motion to intervene nearly two years after the original complaint was filed and that struck me because i was given no opportunity to respond to anything that was put in in those other you can affirm that as a substantive matter the court found my motion untimely and therefore i'm not allowed to intervene is that your question yes absolutely and i'd like to get to the point here if you could help help me understand this for the  record reflects it seems to me that s a s has constructive notice of griffin two when it was filed in july of two thousand and seventeen  griffin one after all had a lot of media coverage which would establish constructive notice of that action and you don't  challenge that your honor first of all there's nothing in the record that says we had notice griffin to being filed and in fact were we allowed to proffer we would say we did not actually know that griffin too was filed the news or the news articles that are referenced in opposing counsel's letter to district judge then district o'sullivan were about the first case so i do not think that the fact that there had been a first case that we knew we concede we knew was filed and we knew it had been voluntarily dismissed doesn't put us on notice that a second case was filed sometime later i don't think you were aware of that second suit since at least late two thousand and seventeen by the time you know we we we would proffer and my my we put this in a reply brief but again there was no opportunity to proffer to this we did not learn about it until late two thousand and seventeen that there are at even been a second suit and at that point one i was not involved yet but when one looks at the docket from that time period the docket showed that the case had gone to mediation or was being sent to mediation that it did not appear there was anything active going on from the docket i didn't personally do not involve the twenty eighteen and that's not the issue here but just from my own perspective once we did get involved we saw what we're able to see from the docket we did not have access to the expert reports we didn't know what was in them or what had been argued in them so from a timing that standpoint we do believe we we believe we were not untimely as such in addition we think that the timeliness has to be looked at in the context not of it was mentioned that you know we knew we had a claim well certainly we knew we had the percentage ownership of the song from the beginning so that is something we of course concede but in terms of knowing that we had a case into which to intervene i think is the key question they would argue if the two if the two years knowing about our claim is the standard they would have argued that if we tried to intervene on day one of the second case it also would have been untimely own different pieces of the infringed work however there are differences in the approach that the other plaintiffs of taken in their case that are on full display in fact in a different context last week opposing counsel said the only thing these two cases have in common is the alleged infringement there's a very different strategy being taken by plaintiffs counsel in the first case and we do believe even if it would not be collateral stop and we don't believe it would be but determinations in the first case are going to affect us as co owners of the work as just a practical matter especially in the same court in front of the same judge  i point to the low road case from from this court in two thousand and sixteen the prejudice within the timeliness factor the prejudice is not about the impact that i'm going to have on the first case that that  only the first case more difficult to litigate a work complicated to litigate the question is and this court said it in the row it's about did my delay my delay to intervene in the second case did my delay prejudiced them and back when i tried to intervene they made the point that they were closing out discovery they were moving for summer and they wanted to move for summary judgment and if i would live to intervene it would throw the summary judgment off the rails  my intervention motion was denied they moved for summary judgment i believe it was still district judge selden at the time judge stanton then ruled on it and he denied summary judgment of not infringement across the board saying that the jury needs to  address this the jury needs to understand that to work the jury needs to decide substantial similarity there is nothing ing that my new facts that i would bring into the case and i'll get to a very limited request as to what i would be allowed to do but that my additional evidence that i bring to the first case is not going to make their summary judgment posture better than just the court has already found there are questions of fact they need to decide internal questions of fact that need to be decided by the jury therefore were i to intervene it would to the judge sullivan we had said we wanted to intervene but we wanted to do it as quickly as possible and with very limited additional discovery specifically we were going to take the fact discovery that had already been conducted we're going to take the parties as we found them  and we were going to we wanted to put in our own expert reports as to the music issues and an expert report on damages because plaintiffs in that case had strategically decided not to put in an expert report on damages that was our ask  d we said that we could get our expert reports out very quickly we put specific timelines in the letter judge belvin use discretion and denied but again looking back at the the prejudice that they would have  felt it would not have affected their some rejection motion it didn't because they've already made it as far as the prejudice to me precious to me and to my client is there's going to be this other case following a strategy that we do not agree with proceeding ahead of us that is absolutely going to have ramifications in the mind of the very judges sitting on both cases at a minimum about the merits of the case and we want to the full opportunities to do that we do think that the court should  not at this point send it back for a full determination in the richardson greenfields case that i cited from the circuit a little bit older than the others in that case they said that the district judge had usurped the power by effectively not allowing an effective motion to be made and at that point they said to send it back and have the motion be made would be wholly artificial at that point we're in the same posture here it's the bill ca too late but if we were we still to this day even though we have a second case proceeding our preference is to be in the first case to intervene in the first case with the additional discovery we asked for and to move forward to a trial explain exactly what you want deeming our motion made and denying it vacated with instruction that we be allowed to intervene in the case and to allow us to take the limited additional discovery that we asked for w these cases ready for trial apparently right this case is ready for trial but is not scheduled for trial until september we ask for we're going to put in our expert reports on the music which are ready our expert reports on discovery we need to damages excuse me we need to receive the damages discovery to to run that report but we are committed to doing this quickly as possible your friend through review asking to reopen the fact that expert discovery in the case we are not asking to reopen fact we are asking to reopen expert key issue in this on this appeal is whether the district court abused its discretion in denying intervention on a case that was first filed in two thousand and sixteen the appellant's do not take issue with the fact that they've known about the first case since two thousand and sixteen they just seem to want to selectively choose what publicly filed events on the docket they knew about and which ones they didn't know about but that is why courts in th we're talking about the second one was your notice for sure but the first case did put them on constructive and actual notice as they admit that a claim had been brought they then admit that they no longer in court sure but then they admit that they knew about a second case being released by the end of two thousand and seventeen i would propose that they were on constructive notice that the second claim had been brought as well given that they can't learn about a claim know who the plaintiffs are and then play ostrich and just you know say well how am i supposed to know there's ample opportunity for them to know by a simple google search or a pacer search but even even if we were to just put them on constructive notice or even take them at their word which we're not required do that they found out about griffin two in late two thousand and seventeen by that point the case management plan had already been filed it was a publicly filed document that case management plan provided for an unusually early stipulated exchange of expert musicologist rip courts and i want to take a moment to explain how important that is in this case this isn't like you know damages expert ports that are just you know usually at the end of a case under the federal rules where you're arguing about the calculation of damages these are expert musicologist reports they go to arguably the key issue in this copyright infringement case it is there it is the plaintiff's expert identifying analyzing the two songs that issue identifying what that expert believes or musical similarities between the two works and dealing with the issues about whether those alleged similarities are original to the plaintiff song that is a key evidentiary issue that is a key expert report that frames the case and frames fact discovery in the case and because of that are the plaintiffs in the griffin two  case agreed to an early exchange in fact it was really the first thing that we did in this case to frame the issues so under the publicly filed case management plan the planes have served their expert report in december two thousand and seventeen my client served their ex for reports timely in january two thousand and eighteen so by january to january two thousand and thirteen based on a case that they admit they had knowledge about expert the experts had framed the issues expert reports were closed because  parties did agreed that no rebuttal expert reports would be provided by the plaintiffs and the parties also agreed that all fact discovery would conclude a few months later by march two thousand and eighteen and then any other expert reports whether it's as of october two thousand and seventeen and in fact it's it's in the record before this court as well the counsel on this question of the plaintiffs counsel well they're happy to have them appellant seeks to seek entirely new categories of damages on touring on merchandise things that the griffin plaintiffs did not seek and it's not simply a matter of just engaging in discovery there would be motions  undoubtedly directed towards both the damages that they seek because we do not believe that a plaintive is entitle to see touring revenue or merchandising revenue as it's way to attenuated there is there is the prejudice that could  our way should the court allow that to proceed and to allow the jury to hear factual issues that were never supposed to be before the court and it's that we would have to be related gating essentially potentially the entire case because we don't know what the experts going to say because despite the fact that his client has told us since october since august two thousand and sixteen that he has an expert report ready to go for two years before he sought to intervene we have yet to see it so we're left to guess as to what actually would have to be litigated but there's no question that we would have to serve a new expert report in order to respond to their expert report we would have to take their experts opposition we would have to re evaluate what potential additional defenses we have what additional prior art we would need to research based on what hypothetical similarities they might identify there's a lot the other prejudice that could come to us which on what would happen if you prevail here you proceed to trial what happens to their case when you're well their case is proceeding and you wish to be in their case right we would do this anyway that's correct we will have to but just so the record is clear here the other case that they brought not only have they named additional defendants they seek to add six additional defendants in that case four of which are based in the u k four of which they have not they have yet to serve and they you know obviously are pursuing all the different damages discovery etc so the notion that these cases are you know the same marvin gaye who have known about this case from the get go for since for now three years and they've never sought to intervene they don't seem to be particularly interested in it is the case that you can point to published publish into a motion where the moving party didn't effectively have an opportunity to respond but we have cited cases in our in our brief dealing with the the letter motion due process issue standing here right now i can't say whether any of them dealt with the specific issue about a reply but let me just address that in a different way there was a month between when they filed their initial letter and the judge decided deem the motion made and decided if they truly believed that we had misrepresented a fact or there were some fact that we had incorrectly stated that needed to be brought to the court's attention they had ample opportunity to seek leave to do so they also have their appeal briefs here they have yet to pro anything to this court that would have any bearing on the decision on intervention much less show that judge sullivan abused his discretion there is i thought that they say that there are additional arguments that they would have made well they have yet to articulate them and i don't think anything would change the simple fact that where you have a case first filed in august two thousand and sixteen you have the second case filed and in july two thousand and seventeen you have them admitting that they knew about the case shortly thereafter you have a publicly filed case management plan in october and the simple fact is that discovery had closed and experts had been exchanged and dealt with at the time that they sought to intervene in and of itself there's absolutely nothing that i can think of that could possibly change the fact that judge sullivan did not abuse his discretion given the facts in this case i would respond to the argument that with respect i think i have three responses to that one is that it's not hearsay because we're not offering it for the truth of what what was said we're simply offering it to show that these conversations took place and these are conversations simply to show that  in the fact that he did contact defendant's counsel and did discuss the case we're not talking about the merits of his claim we're not talking about whether or not he was truthful in saying that he had an expert port at the time or that he was thinking of intervening it simply his general awareness that the fact that these conversations took place is not hearsay second of all you can ignore all of these conversations if you want in fact judge just sullivan really did he didn't rely upon these conversations in denying intervention he because i've read it several times he did say he says he said according to that s a s is a sophisticated party that according to defendants was aware of this dispute and its interest in this litigation at least as early as two thousand and sixteen to me to say according to defendants could simply mean that we pointed out that it was available in the publicly available docket and that we pointed to press that is constructive knowledge and again courts of the circuit have repeatedly held that it's construct that it's it's objective criteria not what they say they knew because they could always deny it you look at what was publicly available and should they be held to the fact that based on the publicly available docket and the press that widely reported on it that they knew that that's really the only place that i see a possible those statements and again i don't think that he necessarily considered it i don't i think you can ignore them and absolutely reach the same result and i also think it's quite telling that they to this day still don't deny that those conversations occurre seven you'll see the docket from the second griffin case and you will see that on october ninth two thousand and seventeen a documentary thirty two the case management scheduling order was entered  the very next thing except for two filing errors is a mediation referral order so yes there had we were we looking at the case management i would be looking at the docket at the time i mean why that matters well again if one looks at people try and settle cases all the time mediation is i mean there's still alive mediation may fail like why does that matter i agree with you and again and again to be clear i'm not saying that i looked at the docket at the time and b wh you want to be part of the me it's a very good question the answer is my client given the opportunity would proper he didn't know about it he didn't know there had been new case that was filed and we certainly think that judge sell them and laid it out in my in my papers judge sullivan did accept the representations of counsel as true and relied on those representations as true to bolster his conclusion that he didn't  hear from us and that intervention had to be denied and that was untimely but again as i point out in my brief even the things that counsel says happened related to the first case the press that they cite is from the first case  then cites it himself but it's press about the first case there is nothing in the record saying that the second case was widely publicized if you'd want to toohey i suppose he could have cited public articles about the second case but he didn't he said the article about the first case that m was proceeding we weren't in the loop on anything but we started talking to the plaintiff's counsel in that case as to what they were doing and where they were going with it and my client again mostly before he even contacted me started finding coun to represent him and then intervene in the case because he felt that a matter of record as to when you had discussions as to when we had the discussion of the plaintiff and not in this record i certainly could dig it up if the court was interested but i don't know when those conversations took place standing here right away ready just shortly before over a period of time well i can tell you and again i'm going from memory here i did not meet my client probably until late march early april of two thousand and eighteen and my letter was in may eleventh and that was after several calls that i made to see if i could get consent would not see any activity one way or the other but any activity to speak of to understand where things were going a forty four i wanted to point out was my letter which i'm sure you've seen in my letter in which on the on the first page of my letter i'm sorry may tenth not me eleventh i speak exactly about what we were looking for there and i say all deadlines regarding fact discovery to remain unchanged and all deadlines were going to expert discovery to remain unchanged with the following exception and i described the exception many of the things that this farkas mentioned now about how we are expanding the scope are in the other case which i absolutely have to do because i can't count  honour's granting the relief i'm seeking here if i don't get the relief i'm seeking here i need to make the most of the other case that i can if you do grant me the relief that i'm seeking here that is our preference our preference is to have been in the first case taking it as it was we would rather participate and limit ourselves in the manner that we specifically asked for then bring the full blown case without any limitations that's our preference remains our  preference so the references that miss marcus made about adding defendants that's true we are trying to add defendants in the second case that's another strategy that we differ from plaintiff's counsel in the griffin case on we have the freedom to do it in our second case we don't have the freedom to do it in the first gate where we have nothing to do in the first case but we have under our request we would not be able to at parties we would not be able to exact discovery so that's what's happening over there you conclude your  it was found that the application of the individual rules and the pre motion process and deeming things it wasn't that those rules were wrong but the application of them in one case it was called a hobson's choice and the other case it was called the usurp of power and i would refer the court back to those two cases and then also in the case in the cat's case both of those cases found that in the intervention context specifically because of the short trips that have been given by the court below the second circuit when it got to those cases had insufficient facts to make any kind of determination i think the same thing applies here as well thank you thank you on and off your arguments the court will reserve decision the final