fertile he's clearly not to be one of your contentions is that that you made discovery demands of metro north to get the overtime records and they never gave you the  overtime records and you complain to the court that you didn't get the overtime records that you demanded but the court went ahead and granted summary judgment against you without without due order in metro two they had to follow i'm asking you when did you tell the judge that you didn't get the overtime records that you had demanded as a discovery demand when did you tell the judge that i told the judge the red light is on a so why don't we hear from your adversary and you've reserved some time for rebuttal yes your  once you know if you know what we hear from your adversary now because your four minutes have expired and you wanted to reserve some time for a battle and you may want to respond to what he's saying so mr minute i'm troubled by this point about finder stand correctly the plaintiff served a discovery demand on metro north for the overtime records and metro north did not produce  them and had a date which i gather may have been after the date for the completion of discovery he told the jury when you made a motion for summary judgment he told the judge they have never given me the overtime records and the judge went ahead and granted summary judgment without directing you to produce those records and as through fifty six explicitly calls upon the judge to do the it's a discretion ary matter without extending the time for the plaintiff by reason of his not having received those records from you why isn't that a problem we should be concerned with your honor it's not a didn't mention north in a letter ask for more time to come up with the information in the judge granted your honor the letter that you're referring to was a response to metro north requesting additional time to file its motion for summary judgment i think in the letter metro north says that in order to report plaintiff's allegation defendants began to gather information about over time assigned to all electricians do the implementation of a new reviewed the file that was received by metro north before it says the latter suggests that you're looking for the information did you ever find it did you ever produce it did you ever submit it no your honor it was not produced or submitted or  meant by plaintiff's own admission was not employed until after appellant was terminated from metro north so there would never have been a position where the two employees would have been competing for this alleged over time that was being denied the other employee mention jason mccoy is not even alleged to have been in his same position he was alleged to have been promoted to a foreman so again those records would not have had any basis on a comparative evidence a third so that we can respond and then once the response is filed there's nothing about overtime right your honor because if you are ever produced apparently even though a request was made for him to get the metro north made the request for time because if you take a look at plaintiff's deposition transcripts which was may twenty third the timing one week short of the discovery cut off in this case he made generalized allegations could not name any employee at the time of his he asked for disks for these records did he make a discovery demand for the overtime no your honor our file has no discovery demand for overtime records the only discovery exchanged by the parties where the initial disclosures which would include the documents metro north was intending to rely upon referencing judge chin's letter as well as the plaintiff's own deposition there were no other requests served and as you can see from the docket when the issue was raised no request was attached no allegation that they had taken efforts to obtain that information and given that the discovery cutoff had already closed in may i see my time so you're saying as far as the record shows the first request by the plaintiff for these records is in july at the representative who was also of the same protected class and the plaintiff is the only person in charge of maintaining the seniority list and picking the specific electrician who would be next there's no allegation that metro north was involved in that process to the arthur allegations metro north influenced the union selection and your honor the only our evaluation would be that there was influence there is no factual evidence of any actual discussions between those parties no evidence in the record at the deposition and absolutely none your honor and in fact plaintiff's appellants own dispute regarding overtime had to do with whether he would be entitled to a third day in a row because another black electrician had also received three days in a row according to appellant so even if there was an issue as to overtime it wouldn't rise to one that would be discriminatory or racially based because is plaintiff's own argument was that it was simply the clerk himself favoring another employee for non racial reasons i'm puzzled by your your brief addressing this issue on page seventeen of the writ brief you say he claims he was denied discovery allegations without merit plaintiff appellant did not raise to the district court and the alleged issue with the sufficiency of discovery until after the close of discovery you don't say he never served a discovery demand before the close of discovery you just say he didn't raise with the court i complained about the sufficiency of discovery until after the close of discovery seems to me that especially with the produce a plaintive this big difference between those you're telling us now that there was no discovery demand before the closing of discovery but you didn't say that in your brief that's correct your honor because a review unclear if it was ever timely served that included a litany of requests for criminal files and personnel files of different employees and asked several other inappropriate requests but there is nothing where appellant requested specific overtime records of these specific employees anywhere in the record and you're hedging your answers with a lot of specificity did he ask for overtime records did he survey discovery demand for overtime records asking that you produce records over time your honor i'm not i'm not aware of that ever being received in the file is not complete that he was requesting overtime records only requests for admissions that included records of every white employee so it was a request for admissions that contained a numerated as one of the items again unsure if it was ever sent or when it was sent because again this was attached to his material submitted in his second brief in opposition to summary judgment only a blanket request for white records white employee records you saying to me that you can say