a relationship over decades proximately fifteen years and at that time between the parties there was no indication of a bit an agreement with respect to how they were to operate on the trade secrets trying to get at what judge you're not walking away from the counterclaim in giving it up i know you got it but i thought you were you just told you how to peeling them you're saying it's over the cases over in the district court you know what i was  deadline for example and the courts are generally pretty there's a lot of flexibility in that kind of a situation do you see any difference between that kind of rule fifty five dollars to fall judgment in a rule thirty seven dollars default judgment imposed for destruction of the district court and discovery abuses that have destroyed evidence for the point within the scope of th judge hamilton's point one of this question earlier this whole dialogue that we're having now let's set aside the wins ok seems to me to be an attempt to appeal the opinion that judge down wrote back in two thousand and fourteen and that's a while ago but more immediately what brings us to court is this default judgment for discovery abuse and the discovery sanction afield from the rule fifty five cases this case proceed into discovery at the history that i add and then this default judgment was entered and now we're trying to rewind the clock and go back to argue whether judge dow got it right or didn't get it right when there's not been any appeal as best i can tell from act i understand the court and the nat but at the continuation of the case was based upon the u s dollar fueling and that was adopted first and foremost we should have never been in discovery i understand the court because it's not in that but the question for you to react to that just seems to me like we're if we're going to go back and redo that the judge our look left me also wondering whether you think the deliberate destruction of electronically stored information words in order to deny access plaintive would make  on that counter claim i would say no i would say that whatever right that they may have had to challenge the finality of the judgment and to suggest the judgment should be modified to reflect their counter their counter claim after many of two thousand and fifteen i mean and that's exactly right so you had not only did you have expert opinions in damages briefing then you had a real fifty nine motion explicitly challenging the suppose hypothetically that the district court was given the opportunity if it so chose to modify its judgment to include the counterclaim what do you think the likelihood is that your client in reaction to that would want to challenge that i would want to challenge you know the are not the basis for the counter claim in the st instance or raise a jurisdictional issue or something also would you just say no that's far more pain no i think what we the counterclaims needs to be addressed by the district court if you think that it needs to be addressed i suppose you would remain that for that matter by the judgment or well you get you could modify that judgment but there's been no evidence submitted in there's no evidence submitted in the damages briefing on the point and that's part of the issue we don't have any evidence in the record regarding the damages all we have the  which i thought would not leave much room for debate about the merits but the th circuit's opinion in the construction case yet when circuit judge kennedy's opinion for the th circuit in the endings both seem to leave at much more the focus of litigation in the last ten years since the fall certainly but i don't think the rule thirty seven context it's not inappropriate deposition by the way the nd part of that deposition happened december th two thousand and fifteen when the new rules in place he set for deposition he had documents with him never produced he refused to answer my question there will fifty nine motions they have never established an error or use a discretion by judge shot in his calculation damages and certainly not to show how these broad discretion