question of whether or not there was discrimination on the basis of age gender or race or combination of those factors and we believe that in terms of the exam and the resulting promotional list was created we believe and the fact that those changes appear to have benefited directly persons outside of mr nelson's class both age race and gender and to fact the background evidence of prior manipulations and t of the promotional process namely the unusual bill in the prior examination to the layer requisitions so again persons outside of mr nelson's class could achieve promotion second we believe that the use of statistical evidence here was equally started discovery cut off date for experts and it was a court case management water following not hearing started discovery cut off date for actually works which simply disappear actually discovery cut off in may which is approximately two months later i believe after we've made the es on the issues that we had a den acquired specifically you know case management statement including statistical evidence that we had discussed in our case management statement which is the same identical statistical evidence based on the same report  service company could not complete a report as he lacked this to he lacked the underlying data from which to create the plane have the test results by individuals we've seen that and discover it all the details of the testing quite sure why the district court didn't do that i believe that the district court wanted some further disclosure of a more formal nature that's the only thing that i can think the district court wanted now to just record felt that  the evidence was not disclosed in other words you under rule thirty seven it is clear on the language of the rule that the only evidence that gets excluded is evidence that was not disclosed and the nature of that disclosure is i believe not just of how that was evidence was disclosed it would not justify the application of rule thirty seven the material that was disclosed if for example the jury will have been disclosed entirely informal now you know just because counsel working together heard you know exchange documents and so this is what's in our file here's what's on your both sides and here's what's in our file here of the various factors we're not going to sort of we're not going to go through formal pretrial disclosure of this report and if they have felt in any way that they mis understood anything then the solution would have been try to fix whatever problem they felt they sat whether they wish to have a late deposition  whatever reason they certainly could have asked for that if they watched and i'm not clear as to what you're telling jeff salary right now are you saying that you did comply with the rule twenty six and the nine or so provisions  so your answer is you didn't comply with rule twenty six however the answer is we did not comply with those aspects of rule twenty section and if that means we didn't comply would walk twenty six the answer would be yes but we would point out that rule thirty seven it was disclosed so yours that your argument sounded like it's a burden on the defendant to point out that you didn't comply and to ask you this specified wherein you didn't comply is disclosed and identified in january this case management state was caught i believe in march expert to cut off was made now so if the question is opportunity then it was certainly there if they decided not to do it for whatever tactical reason they may have done then i don't understand that to be prejudiced if on the other hand the court got where they should have another chance to depose mr housekeep prior to trial and certainly that's an issue that could be raised with the districts in our case management statement we state that there are going to be two expert testimony or two experts testifying a trial one for the defense one for the plaintiff we state that discovery of experts that we anticipate depositions of the expert it seems to me straightforwardly in the sense that that is an error if they made it they should ask for relief or or race i mean that you know it seems to me that if they're complaining about that they can't really be complaining about the lack of opportunity they can only be complaining about that they had an argument that they were planning to make this a that meeting failed to make some form of disclosure in some manner and that they were seeking that for a lit i don't think that was what they were doing that that would constitute a form of prejudice that would be relevant for determining that would be particularly supported their position here if they're talking about however an opportunity to that in fact submitted an expert to provide jette background as to the development of the test and provide and mr and provide how that test was developed how that was complying with the very skylines for testing all that was her testimony all that was submitted by them they don't claim to have ever made any disclosures of that expert along the lines of rule twenty six for the obvious reason are that it was apparent from day one and p saying is not necessarily that they are saying that they changed procedures and it was the prior procedure had been to set a cutoff for protests in this case after the written test portion was then they looked at all the scores and decided to have everybody pass the evidence were interviewed panels you have a higher ranks on those panels for example for a lieutenant examination that would mean have captains or above or start an examination have lieutenants or above that the in this case they all have lieutenant level personnel test the inference is that they were changing it to affect the test results there were captains available at the time captains about billable time apart because of their pain same time the practical examinations were being given there were captains for those p the implication was that that panel was delivered the in logical inference as a sort of what is the evidence that was a little evidence of that was deliberate you are in order to affect the outcome available namely that there were captains that were handling the practical part of the examinations so that there was no logical reason why shapiro couldn't have been on the interview there was or could have been a more mixed mix balanced and three i suppose the other thirty thirty inference from that is that although my client very poorly on the oral interview he did average or better on the practical examination which was held approximately two hours earl a case where it's hash practice is relevant in a discrimination case even if it's outside the statute of limitations and that's a situation where again the city had deviated from crash practice by delaying approach promotions from october until the fourth until when they would normally be made until the following year and again that benefit it that allowed younger minorities and females to achieve a time in grade that would allow them to be promoted over my client to available open the kind of positions to put it just to describe the fact the lieutenant positions for which my client was top of the list w approved in july and they would normally been killed in october they were not killed in a car where they were not killed until january but in january certain other individuals may achieve a timing great that would allow them to take those promotions or run my client or allow them to be promoted over my client that again suggestion manipulation of the process of the process and again raised the question who benefits from that change in practice and if you look at that indicate the inference of discrimination arises and the fact that  happened in a prior examination and in fact it might involve all issues which are evidentiary rather than substantive doesn't change the fact because time older incidents can be looked at for purposes of determining motive under stablish law court refused to do that lower court refused to do that and that sense we believe the court should error in not even considering that evidence and should consider and we believe and the seven just put together is sufficient to go to a jury i have about a minute i believe what is your savior thank you very please the court my name is jonathan roll mechanic at the city attorney and i'm here representing the city and county of san francisco the district court correctly determined that summary judgment was appropriate in this case and there was four other applicants they took a test that was developed administered by an outside contractor cooperative personnel services they developed the content that would test for us that had three components  practical and an oral at the end of that examination and eligibles list was created mr nelson was ranked twenty ninth out of the forty four candidates on the list he was twenty one as the list was numbered since there were several candidates who shared the same score those who ranked higher than mr nelson twenty one were forty years or older of those twenty one nine were over the age of forty five thirteen were over the age of forty four five were older than mr nelson thirteen promotions were made from that list in rank order all had higher nelson in his deposition indicate he thought he was a shoe in for one of these promotions when he didn't get one he looked around and he saw give people some of the people who got for motions for different change he assumed that he was that they were not all men and that some were not all white or some were not white they were not all life and so mr nelson came to the conclusion they're different than me the only reason i didn't get this job is because they're different than me and somebody discriminated against me and this reminded him to go back and look at the interview and he had an interview in which he did poorly and the basic argument  to you is but for the fact that the panel was composed of two white women and one african american man if i had a panel that looked more like me i would have gotten a promotion and that's all the evidence there is follow up questions c p s train them about how to score applicants on their response to the questions the individuals who did the assessment as well as the other oral component of the examination which was the practic hand came from law enforcement agencies not associated with the city and county of san francisco these were not individuals from the sheriff's department or from the city's police or fire department for judge white in his orders to the city and didn't have the opportunity to depose is that correct or that is correct and i think there are a couple of misconceptions here about what happened with respect to mr look house the disclosure that  points to was a report that if you look at the record rule twenty six places the burden on the party who wants to offer a passport testimony to disclose it there was a scheduling order in this case that set a martian date for disclosure status conference statement knew that mr nelson was exploring the possibility of using an expert witness but under rule twenty six until that's disclosed we're just divine in his intentions who rules also provide for parties to retain consultants who are not testifying experts and oftentimes parties will wait up till to the last minute to decide whether or not they want to use an expert and the the burden is not as mr nelson counsel seems to imply on th rectify any confusion it's his obligation to send us an official disclosure identifying the individual providing a copy of his final report out of her luminary report as well as all the other information that's required under rule twenty six once that happens then the city knows that an expert is going to be testifying when did you finally find that out but that he was going to use when he offered mr the house report in his whether it was intentional or not it was sandbagging it was the route the purpose of these discovery rules was to take the guessing out of this and it's a very simple rule and the burden is on the party offering the expert to perhaps the court could have done that but the city's position is that it was incumbent upon mr nelson to ask for that relief it was not incumbent upon the city he never asked for the city's position is if he thought that he had missed this deadline and failed to do with  supplemental disclosure and to provide the city with whatever opportunity it needs to conduct discovery and that did not occur here again the burden was on mr nelson and his counsel not on the  i think even if you use these statistics even if the court was being correct as to whether or not that evidence was admissible same outcome results the statistics are not enough to bring mr nelson over that hurdle once the city offered its legitimate nondiscriminatory reasons for its action it's not sufficient to show  here were motivated by discriminates discriminatory animist this was a small sample size and there was no other evidence that he offered no other competent evidence from which to draw an inf discrimination was afoot in this process with each of the items in its in our brief if you raised this with respect to past practice there was no evidence of a de lay between the ninety five  exam and the ninety nine exam the only evidence is that there was an exam in ninety five and there was an exam in ninety nine the lay is how mr nelson chooses to characterize it but he offers no evidence from which to draw an inference  intentionally waited that four year period to provide an exam for lieutenants that's simply his characterization of the exam with respect to his argument about who benefits everybody benefit everybody who has an opportunity to take that next exam benefits there's been no evaluation as to who benefits there was no statistical information or other discovery as to the universe of people who benefited by the fact on any basis with respect to the cut off score again wrong the civil service rule it's in the excerpt of record supplemental excerpt records and cut off score is made once and then not changed there's no evidence that the cut off cord in this case was ever changed or was established and that's cut off score they stuck with it the interview panel again none of the people on the interview panel were from the city and county and there is no logical way to draw an inference that we included lieutenants on the interview panel as a way of care per the ring discriminatory trained by c p s and there's no evidence that c p s went out and found those people and said let's finally tennis because we're more likely to find younger people are more likely to find women in those ranks and we're more likely to find minorities in those ranks there's no evidence to support that kind of inference and finally with respect to the so called background situation the court properly excluded that under morgan and this court's decision in the lions they were just similar this was the time bart issues he has regarding his failure to get a promotion based on the one nine hundred ninety five examination morgan and lyons recognize that where there's conduct of the similar nature although it may be time barred and is not relevant for purposes of law or it's not liability producing it may be relevant to actions that were with our within the statutory time period his complaints with respect to ninety five are not has nothing to do with the examination process in ninety five has nothing to do with the interview panels in ninety five has nothing to do with his rank on the list his argument  focused on the ranking or the sewer provided by the one panel his complaint here has to do with the process of the examination because of course he can't argue with respect to the ranking because the city went down in rank order here and they did not reach mr nelson so the court correctly decided that that information was not relevant to the type of discrimination the discriminatory action that mr nelson focuses in on this case