is here today the trial was fundamentally unfair to miss smith in the class for four reasons or for reasons this court should not allow the judge into staying southwestern secured this judgment through discovery of misconduct second southwestern secured this judgment through trial misconduct third southwestern secured this judgment of the introduction of irrelevant and prejudicial evidence and for southwestern secured this judgment through an erroneous partial summary judgment ruling that unfairly negatively impacted the trial and cumulatively and individually these errors let the class without the ability to care get a fair trial and we submit the court should reverse the judgment and hold this decisions on the district court's rulings that summary judgment in advance ending answers from the arkansas supreme court to certified questions turning to the first reason this court should not allow the judgment to stand southwestern discovery misconduct southwestern ambushed miss smith at trial with the existence and content of a document a two thousand and five term sheet that was not produced in discovery and that rendered the trial fundamentally unfair all corporate present it is testified in the first term search term she was created in two thousand names in there were none prior to two thousand and eight the documents content and existence was key evidence on a and the existence and content of this term sheet that was never produced before was extensively cited by south western throughout the trial as key evidence of arms link circumstances surrounding the dedicated agreement forty five times and witness examination in closing it wasn't cumulative it was the only evidence of any rate negotiations in the two files and five time period and the source document f the dedicated agreement it was backdated by three years it was effect of january one two thousand and six but it wasn't signed until sometime in two thousand and nine but with testimony about the existence and content of this two thousand  term sheet southwestern was able to bribe support where none previously existed for their argument that there were no suspects circumstances surrounding the dedicated agreement with this surprise document southwest was able to argue that the dedicated agreement was negotiated at arm's length like most major projects because the free and other key terms were agreed to in writing and put into effect from day one in a term sheet that was in closing and throughout the trial there is no doubt that this had a substantial impact on the jury's consideration that question whether the reasonableness of siegel's cost considering the circumstances surrounding the source the c goes cost the dedicated agreement and it was reversible error to allow testimony about the content and existence of this document in two cases say as much this court's decision and ten barge ordered a new trial because the plaintiff was denied the opportunity to develop his cross examination and challenge testimony as a result of evidence first disclosed at trial this circuit in the rooms your pet if ordered a new trial where prior disclosure of an unproduced document could have made a difference in the way point of counsel approach the case or prepare for trial and when those cases and rule thirty seven are applied here this court must reverse and order a new trial because we a experts so at the position that there were no documents showing any rate you know she ations or anything else approaching arm's length circumstances because that's what the evidence showed before trial and since it wasn't produced in discovery we were denied the opportunity to develop cross examination regarding the term sheet and denied the opportunity to examine witnesses about the reliability and authe when it's meditative revealed that it was created in two thousand and thirteen not two thousand and five as represented at trial with this improper evidence that we had no ability to test they were able to did you object to all of the testimony about the terms that you're now saying should have been excluded your honor the first time that it was mentioned it trial we objected and preserve our claim of error on appeal and the co rule that he was going to allow he was not going to admit the document but he was going to allow testimony about it and there was no requirement that we really object or raise it again when the cord ruling the next day in the heat of trial we tried again because we thought it was the right thing to do and the court of furniture ruling and made the same ruling that made the day before and said he was going to allow testimony about the if there are no other questions on the term she want to move to the second reason why this court should not allow the judgment to stand southwestern trial misconduct the district court's refusal to instruct the jury that the court had approved of the class action procedure resulted in a miscarriage of justice for southwestern argued to the jury that mrs smith's conflicted lawyers and not the court appointed her to be the representative of a class that didn't agree with her and would be harmed if they ruled in her favor despite on request district court never instruct the jury that the court had determined miss mina to be an actor or adequate representative with interest the same as a class court never told a jury that the court approved of the class action procedure in this case the court never instructed the jury that class absent class members don't have to testify with those instructions requested but a word your honor we requested those nine three seven two three seventy six and southwest france misconduct required that those instructions be given here they argued that miss miss interests diverge from those of the class  demonstrated by the fact that there was no evidence supporting her representation of a class but the chordal while the jury to assume that other class members needed to testify to support miss smith when southwestern argued the last didn't agree with her defense that was different from many of smith's claims they were under court order not to in any way drive a wedge between miss myth and the class and they completely disregarded that order southwestern also repeatedly attacked last council the spike the district courts admonitions to stop telling the jury that we were acting as in pakistan the class and had interests that diverge from the class in any type of case that kind of misconduct is out of b all accounts still stir and the district corgan knowledge that but it was especially prejudicial here because the attacks on council drove a wedge between class council and the class in the eyes of the jury and given southwestern misconduct something had to be done and we asked for an instruction consistent with or new burger treatise on class actions recommend that be done yet nothing was done and there was a miscarriage of justice as a result the district court knew how bad it had gotten before i even objected and i will tell this court that there was no instruction that was going to put miss mina and her counsel back together in the eyes of the jury given southwest conduct and the instruction given certainly didn't cure the prejudicial impact they argued that miss smith and her lawyers were both taken positions that would be good for them in part the class the court stated at the bench conference at the argument left him with with the class and there is no doubt that it had the same impact on the jury just as southwestern intended yet the district court refused to instruct the jury that the court had approved of the class action procedure that the court had approved of miss mina as an adequate representative with the same it uses of class and that absent class members don't have to testify and given th excuse me or i did we did in closing absolutely there was any objection to those arguments i believe i believe southwestern his counsel stated that they did not believe that the court needed to give the veto of an instruction no i meant did you argue those points to the juror the point is that it was the judge in the council that no your honor you're saying counsel is arguing the contrary to the jury white in june respond and say had or hadn't done there was a motion in limine he granted that riveted us from making any mention of any of the court's pretrial orders and so it wasn't my place to tell the jury what the court had and had not found previously it was the court's job to tell the jury that it found that the class action procedure was appropriate and that miss myth was an adequate representative to represent the class especially in the face of southwestern  not the district court never gave those instructions and given southwestern misconduct it cannot be said that miss smith from the class received a fair trial in their absence the court didn't have any more questions on that point i want to move to the third reason why this court should not allow the judgment to stand and that's because the highly prejudicial third party role to practices of b h p were not relevant of the tenth circuit decision a neighbor ham and southwestern failed to lay any evidentiary foundation that could conceivably establish their relevance in any event and abraham in the tenth circuit ordered a new trial in circumstances almost identical to what we have here just like the party in abraham used the royalty costs were reasonable and the tenth circuit held that role ticked those of another producer like those of b h p are completely irrelevant unfairly prejudicial and inadmissible when answering least specific questions and their admission is reversible error warning a new trial and we submit the course and follow abraham and reach the same result here especially because the improperly admitted evidence was much more prejudicial than that a neighbor ham given the undeniable visual impact of southwestern cross examination a mismatch how can you say you were cheated by southwestern when b h p deducted more but even if the courts are not convinced by abraham there was still no evidence presented lang any foundation that could have conceivably established the relevance of those royalty statements and here's why they presented no evidence that the amounts that b other questions on that point if not i'm going to move to the fourth reason why we believe this court should not allow the judgment to stand and that's because this trick or two rulings on a novel questions of arkansas state law are wrong as a matter of law and and they weren't harmless at summary judgment the district court ruled that ceco incurred costs under the meaning of the lease were garlics of whether saeco ever made any payment but it refused to answer whether affiliate profit can be  and with no ruling on instruction on whether affiliate profit can be deducted the court's ruling on incurred was tantamount to the court's stamp of approval on southwestern macon role team owners paying more for gathering and treating south western is and even though all experts in the case agreed that a cost of service analysis like that was before him by miss smisek or mr solomon is an appropriate way to assess the reasonableness of affiliate transactions the ruling allowed southwestern that tell the jury to ignore his testimony because he looked at the soto's costs not see those he answered the wrong question is what they told the jury  closing this harmful ruling was wrong as a matter of law the soto's bills that were paid by another company s e s saeco as marketing affiliate are not cost this was a vigorous hard fought well tried case it was presided over carefully and conscientiously by chief judge miller the core issue in this case is whether those incurred costs for gathering services provided by desoto were reasonable that was the whole focus of this case it was undisputed at trial and it is still undisputed today that  charged less than it charged nearly all of its other gathering customers saeco was fourteen out of seventeen on the gathering treatment of having a treatment charge that a desoto this was not some sweetheart deal in addition when saeco went to find gathering services from other companies it actually paid desoto a higher rate lower rate than it paid other gathering companies so this was not an example of ceco trying to garner additional deductions from the royalty payment that's why the jury returned the verdict that it did and most of the arguments that you've heard this morning are entirely tangential to that core reasonable in the issue that motivated the jury so what i'll do and of course nearly all of them are subject to highly deferential abuse of discretion review or require showing that there was a fundamental miscarriage of justice that there was quote an overwhelming probability that the jury couldn't find a follow jury instructions that were given by chief judge miller so what i'll do subject to the court's questions is go point by point very quickly on the argument that mr cramer emphasized this morning mr kramer began with the term sheet two thousand and five term sheet i want to be very clear mr kramer said that document was not produce that is not accurate the document was not produced during the discovery period but both parties agreed in their briefs that the document was produced twenty five days before trial to smith they had that document and in fact it is clear from the record that they knew about that document because they objected to that document when it was placed on seacoast exhibit list what was what were the what was the the reason for the saeco was making productions in multiple cases and saeco believe that it had produced that document and one of the other productions and it found belatedly that it had not and so it produced it  objected to it before trial it was well aware of the existence of the two thousand and five term she when it came and then at the opening in the trial and throughout the opening phases of the case even though smith had that information it chose to make a central part of it operating when that evidence came up at trial when the term sheet came up at trial smith did it object and chief judge miller said i'm going to exclude the term sheet because it was not timely produced they got that relief what would be the point of excluding the terms then allowing someone to test yours what was in the terms i think if you if you read the record what you see is the testimony was about those witnesses personal knowledge about the term sheet the term sheet itself was not produced to the jury it was not admitted into evidence that the same thing isn't it if you let somebody testify there was a term sheet and here's what was in it from my personal knowledge the same substances coming in and as though it were the term sheet itself my missing well the term sheet would of course verify for the jury the accuracy of what those witnesses were saying i mean i think the law draws that distinction between the admission of evidence and the admission of personal knowledge and chief judge miller exercised his discretion because i believe he thought it would be in a disproportionate sanction for an inadvertent failure to produce when they had the evidence before trial it would have been disproportionate to prevent saeco from from putting on their witnesses about these negotiations that were happening back in two thousand and five particularly when they had made that argument knowing that it was not accurate i think chief judge miller who was on the ground at the trial decided i'm going to i'm not going to muzzle these witnesses talking about  that they know about that resulted in the term sheet and that was that that sort of consideration of evidence that would otherwise be inadmissible is allowed by this court as a corrective to open  to correct misleading testimony proffered by the other side speaking of misleading i'm curious about what your response would be to the assertion that many data shows that the document was created in two thousand and thirteen not two thousand and five yes your honor as i mentioned we thought we had produced that document in this case but we found that in fact we had not if we had another case so what we did is we got that document we scanned it  other questions on the term sheet we we think the judge reasonably exercised his discretion in creating the sanction that he did and in allowing saeco to put on testimony that rebut it misleading testimony from the other side now the next category of argument and mr cramer has made relate to lawyer comments not not evidence in particular he references the complaint that she goes council was allegedly trying to drive a wedge between a mrs smith and the class there was only one one instance where saeco made any such statement that had to do with suggesting that mrs smith didn't represent the class interests that was in closing argument and that was the only one that they objected to and second that smith objected i thought i brought it up here with me but it's in our brief judge miller gave a very detailed curative instruction and he instructed them remember i've told you miss smith represents the class any suggestion you've heard she does not represent the interest of the class you should disregard that that's block quoted our app at least brief their response to their argument on this point what we what was the point of your argument i can't go back and tell you the thinking of trial counsel on that point i think that one one thing i do know is that mrs smith was very honest throughout the course of her testimony that this was something where the lawyers had come to her and said you may have a claim here she said the lawyers were the ones who brought this to me they were the ones who told me about this and they were the ones who showed me how to bring this case and now i don't know how their work there was evidence that what mr smith was doing would hurt that other class members that was not objected to a in addition that is different from saying she doesn't represent other class members and that sort of thing that that was simply making the point that the evidence in the record was when saeco created desoto to be its gathering company it created efficiencies it created savings that it passed on to the royalty owners because remember of ceco had gone out had to buy other gathering services it would have had to pay a higher price saeco was developed saeco was developing this field from scratch was the only one that could build these gathering facilities so we were arguing ok if you make this argument that you cut out saeco and you treat everybody is the same company i doubt desoto you're going to harm the class members that was just an argument about about reasonableness at the end of the day one one quick final point on the term she i think mr kramer has presented that as being a central issue in the case and going critically to the issue of reasonableness but the issue reasonableness was just are the rates reasonable are the rates desoto actually charges saeco comparable are they reasonable compared to the market a question of how those rates came about is really a tangential issue the jury could look at the end of the day and say t was one of seventeen compared to hers that saeco put on and that's why we have a trouble understanding how the h p is not relevant let me elaborate on that a little bit mismatched received royalty checks from b h b h p operated a well that was just off mrs smith's property and mrs smith was part of a unitized agreement whereby she got a check from b h p and she saw how much b p was charging for gathering was passing on to her for gathering from its affiliate so it's hard to imagine something it's hard to see how that's relevant because it's somebody in the same oil field that somebody sending checks to the same plaintiff but i want to emphasi that's not where the evidence stopped and raised all this again we had seventeen other gathering companies producing showing what their charges were to the producer and so even if there was some error in admitting the b h p practices that was that was just one line on an exhibit that was seventeen lines a lot of the expert testimony and let's just assume there's some problem with the admission of the b h p practices themselves the  there was no objection there was no problem with experts saying i looked at b h p along with a number of other gathering companies and in doing and let me mention in response to both your question and judge college in their later question that chief judge miller did a address these in in a reasoned format in his order denying the motion for new trial he addressed abraham case and that's at smith appendix ten seven six four so abraham was simply a very different situation abraham was not about the reasonableness of charges it was about whether the operator in that case was correctly paying the market value to the royalty holder and the defendant that case said we want to bring in evidence about another producer which has all kinds of leases and it just applies the government formula for determining what to be paid what has to be a to the royalty holder whether it's a market value lease or anything else so the tenth circuit and b b p well that's not relevant they're not making a particular as the terminations as the market value they're just applying some government formula as to all of their leases it wasn't like what we have here where you had direct comparisons on the question of the reasonableness of the gathering c that were being paid and being passed on to the royalty holders so so judge miller explains that and i would say this is an example where chief judge miller was even handed in the course of the trial as mr smith wanted to introduce evidence of third party and how much the third party paid its gathering company and that was the devon evidence that's referenced in the brady southwestern saeco object and said that that's not relevant for a variety of reasons and judge really said i'm going to let that in that goes to the reasonableness of the charges when we try to bring up the b h p evidence they made their relevance objection similar argument a lot of ways judge really said no i'm exercising my discretion to let all of that evidence and let the jury decide what's reasonable now they say that we have not laid a foundation for how it's relevant i think we talked about that this morning it was a producer at the same oil field right next door to the pla f paying fees to the point that if they had some argument about how it was not relevant at that point it was on them to show how this b h p evidence didn't cross the minimal relevance threshold they never they never did that to chief judge miller  if there are no further questions on those points i will turn to the partial summary judgment and the motion to certify questions to the arkansas supreme  court the partial summary judgment was correctly granted and that was granted by judge wilson who was the judge presiding over the earlier parts of the case and i would suggest that all the court has to do is review judge wilson's order on the motion granting the partial on the order granting the partial summary judgment it was very straightforward he said what i have in the in the record is undisputed i have got an  judge deferred the question of whether those costs were reasonable until trial and that was the issue that was tried by tried to the jury now what smith raises in her brief are really technicalities and formalities of who got the invoices when was did did saeco walk over and in hand to check to desoto by a direct transfer but remember the agreement here said that the cost could be paid by intercompany transfer and there's nothing unusual at all about that in the world of corporations with separate subsidiaries so again i think this all comes back to saeco in desoto had an agreement to get these gathering services really undisputed other than technicalities that saeco was out the money for those services because what saeco did was it said it order s e s to pay desoto and then  chico so that's that is saeco paying the bill in addition they focus a lot on the invoices and again i would just say go back and read judge wilson's order on that he cites an undisputed declaration that says that  saeco got these invoices from desoto now there's also evidence saying that s c s got them and that's right they both got them but the only thing that was required is if anything was required in the agreement was that saeco be the one of the parties that get them if they get them and voices  i would also say it's worth looking back at the trial record on the partial summary judgment point to because i think it confirms that this was a harmless error even if we would have course don't think it was an error granting partial summary judgment but even if even if it were in some way i think it's worth looking at the testimony of the plaintiff's own experts they both of their experts expressly concede that ceco incurred costs here when they paid and they paid  and that's at smith at seventy eight forty five through forty six smith app eighty three ninety two ninety three and smith that eighty three ninety five ninety six so in any event they conceded those factual questions to the extent they weren't wrapped up by the motion for summary judgment turning briefly to the motion to certify questions which i think was the last point that plaintiff has raised here they are arguing that the ark and saw curtain operator statute somehow prohibits without saying so expressly the charging of philly at cost and affiliate profits as part of the charge that's passed through to the world the owners there's no case that says that the statute doesn't say that but their argument is that the arkansas supreme court would reach that conclusion my key point on this your honour's is that there is no basis for this court to certify that question to the arkansas supreme court the reason that a federal court certifies questions to a state court is so it can avoid answering those questions themselves but the plaintiffs never ask this court to answer that question they don't have any point of error in their merits brief that says saeco is precluded as a matter of law of that of arkansas law from passing on these affiliate costs and the reason they don't have that as a point in their merits  because they didn't move for a judgment as a matter of law on that question if they thought arkansas law entitled them to judgment on passing on any element of profit to the royalty holders they would have moved for judgment as a matter of law at the close of all the evidence and then move for a new trial on that point you know the one of those filings below and there's none of those filings there's no point of error raised on that point in this court so even if the court were to somehow certify this the arkansas supreme court and they said yeah the arkansas statute does prohibit passing on affiliate profit comes back here there's no preserved point of air to do anything with it so there is no basis to certify that and the reason there is no legal ground on that point raised on the merits appeal is very simple once the class was certified they abandoned their attempt to certify the question and what they did was they treated the arkansas part in operator question as part of the breach of contract question the arkansas  is just an implied covenant that gets read into the contract and they argued to the jury and they put on evidence during the trial that saeco had breached the arkansas statute by acting on recently by charging excessive costs etc so they treated that as a fact issue to be submitted to the jury and in fact they got a jury question or they got a jury instruction that quoted the arkansas person operator statute to the jury and again they did not move his judgment as a matter of law to think your honor one address a term sheet first they have no explanation whatsoever for why it was not produced in discovery and the fact that it was produced twenty five days hardly real and that's why the court allowed that's why the court said he allowed testimony about it and their own experts said the negotiations relating to the dedicated agreement were relevant what about his claim that l i mean the if i can address the question i'm just saying if the judge excluded something because it wasn't produced in discovery does that allow you then to paint a picture that is not accurate  evidence that they're as though there were no negotiations well that's what the evidence was before we got to trial witnesses i'm not sure you understand what the question is here's the deal let's say that there's a term sheet or  agreement and then excluded by the judge because it was not produced in the discovery period and then and but it is produced before trial at trial you claim there were no negotiations and no agreements well now this is an impeachment question it is no longer a question about whether or not i mean you can it's a pretend universe in which you have a document that you know exists in many come in later and present evidence and says no such agreement exists and then that's you know right and then you kind of trying walk around with more and say there were no remits minute or no we that the term sheet was not mentioned at trial until in southwestern it's case we took the position in opening  experts took the position in opening that there were no negotiations no written evidence of any because there wasn't and as my pro pointed no i think if you have evidence that negotiations and agreements existed and then you take the position that none existed then the continuance on that basis we did not and we were required to your honor we the very fact that we were supposed to except the authenticity and legitimacy of this document that we've got twenty five days but when the testimony when the situation changes on the ground and there is a document it tends to show that the reality is is that there was a term sheet in an agreement do you it is your position that you just get to try a case billboards from the real facts will know the cage should have been tried based on the facts that were disclosed in discovery and expecting us to change our trial strategy based on a document who's on and we had no opportunity to test in discovery it was extremely prejudicial and he would ask her chance to to read to pose people to ask for a chance to to address it i mean it well let me address let me address the point your honor discovery was over ok and we never imagined but the court what a lot help us document in and or allow testimony about it in especially considering that all the evidence in the case and all the discovery in the case prove that there was no two thousand and five term sheet at all we spent two and a half years with a gate in this case in our experts had already testified that they would have gotten slaughtered if we would have changed our position roads here in ten barge say that's not allowed and a new trial is warranted in the circumstances it was extremely prejudicial your honor and if there's a new trial is it going to be excluded then too well what we will have is the opportunity to conduct a bunch of discovery about why this document that they say was created in two thousand and five why it's metadata shows that it was created in two thousand and thirteen there's lots of discovery that we can do relating that term sheets or example mr bolling why did he tell me their warning the term sheets prior to two thousand and eight why did mr fail or the first witness that this document was used with in his deposition led by southwestern counsel for an hour and a document that their own witnesses said than exist before trial and expect us to completely change our trial strategy there's no doubt the production of this document during discovery would have changed our trial strategy just like ten barton just like