case however it is our view that she is equally responsible for the conduct of defendant bennett through the actions of devon i t because she made a deliberate decision  to hold devon i t along with all of substantially all of the couple's personal property as tends by the entireties and coupled that with the decision that she would remain ignorant regarding the actions of her husband in running not just of ninety but all the company all the couple's businesses so when you put those two factors together we believe that yes we think we get we think that we well first of all we think that that shows that she has a level of culpability for the misconduct of her husband but we believe that the political pennsylvania and third circuit law is that we don't have to show that she's a couple in order to pierce the corporate that's correct that's correct right and i think you're i respectfully that's a that's a distinction that the trial court made we believe in correctly in this case the evidence was that at least a net transfer of some twenty four million dollars went from devon i t to other devon entities that the defendants also owned house that to judge belsen and have a redo on the merits or do you want that plus if i understood i think i understand this you want some adverse inference yes to be to be brought into play well i think that's a good question there's actually there are two related points to answer your question first is we believe in adverse inference had to be assessed in this case against the  well that if we did the piercing house that's exactly right because under those individual factors and you can see that in his in his memorandum decision denying our motion two men just meant he went through on for affected by factor basis and criticize client trying to showing a trial regarding for instance the sufficiency of documents regarding some of the subject so stealing transactions that we talked about here now the reason that we didn't those documents and that testimony was known to judge nelson but but it was because the defendant simply refused to produces documents in response to our requests and in response to his that waters compelling production compelling the presentation of the thirty six witnesses to testify on behalf of the company for instance regarding whether there was a legitimate you know business basis for the net transfer of the of that money whether in fact the three point five million dollar well that's what judge belsen found but again in our view your honor if the money goes to another company that the bennetts and completely it's the same thing it's a distinction without a difference particularly where our expert testified that the bennetts were well i think mainly you're out of there first of all there was evidence that it took place they have their own tax returns that show that it took place but the judge said in his ruling was we can prove that that money went into one of their personal accounts which is in our view not required if we can show that the money went to their personal benefit which we believe we did but to the extent that we were lacking that evidence to put on regarding this specific fact findings the reason that we didn't have an exclusive reason we didn't have it is because that those documents and that evidence were uniquely the control of the defendant my client and we went through in our opening papers and i think laid out a target set out the specific requests that we had made that we moved to compel on and that the judge granted relief but we didn't ultimately get those documents which is why he entered sanctions against document in the first  i believe the answer to that question is no your honor there's there is a recent case that your honor actually participated in united states you bogart where the court found that the united states could reach the assets of the couple that was held as a joint tenants by tenants by the entirety despite the fact that there was no fault in regarding the wife it was a legal obligation only of the husband and what was important in that case was that there would be an injustice served if the couple was allowed to benefit by the tens by the interrogator form and that was that was what was important there and the court didn't require any showing by the united states that she had done anything wrong because the liability was why no sir i believe if you read judge me else's opinion he clearly sets forth why he makes the sanction as to the seven hundred forty five thousand roughly in the forty four thousand the six to whether or not it could be validly enforced well i think you have to look at what the violations were that were actually deemed to be sanctionable by the court contrary to the aggressive in flowery language of the appellant's we're talking about a situation where dr bennett was sanctioned for sensually two reasons the first being that when he got into rada tori's ins requests for production documents he was told to search for materials at his deposition he testified that i looked in my gas and in my house and i directed my staff to look elsewhere for the files and materials the court was affronted by the fact that dr bennett had given that responsibility to others to look for his materials but there's more than that is the he he if i understand it correctly played fast and loose with the during depositions he gave answers that were incredible under the circumstances it's quite clear that that that no spoliation and as judge krauss appropriately pointed out counsel didn't anywhere in his brief say this is the document we didn't have or expert could not write a report because we were missing this specific financial document so fact they had the alleges they had all the personal bank accounts the bank accounts of all the other corporations or perhaps all nouns of documents how it turned out perhaps what's being claimed as a constructive sort of spoliation you say though your argument is even if if i may dress that the thirty six witnesses was not produced as we were and we had many phone conferences with the court of the senate one time the court said well they don't have anybody i can understand they don't have any people leave the company and you can't put the burden to teach somebody what you think it wise you have to address the situation just look at everything in context but the judge later changed his mind on that because of the deposition behavior of my client the judge did not like my client my client acted rude and inappropriate at his deposition but that it is not enough quite frankly to take away and apply the mare the sanctions to his wife thank you for raising that your honor this is not our burden as the judge said in his opinion the burden has always been theirs to prove the merits of their case you know the whole purpose of the thirty b six is so the corporation produces somebody and if the take away from this is that you can play hide the ball because no way because you say that nobody is armed with the with the information  to do the analysis where does it fit it is not known if i may go back again what do you counsel tell you he didn't get that he needed in papers or here before you so that is quite frankly a red herring as they had him if i could while i with respect to the fact that their expert could make calculation absolutely and your honor to answer i think both your questions hopefully the thirty six wins was very strange situation we had we were our third c f o since the time but they did get and which we offer did designate for certain portions joe make with the president of devon eye to eye to you testified as to what he did dr bennett ok the president and they had any number of witnesses that they could have called direct your discovery to fill the gaps that's the whole point i appreciate that your honor when i say they got i'm talking about the documents specific thirty six witnesses of a witness we didn't have anybody there at the time who was quite frankly cable i that when i don't know what exists and well i think they know everything that exists based on the questions they asked to depositions and all the normal bank records you have in business dealings they had all the bank statements they had the ledgers they had all the background information we could find they got everything that we had there was no hiding the ball here the main problem here with requests to with the problems with discovery is my client is not a likeable man  see affective argument well yeah and i'm trying to put everything in the proper context it's not an excuse and i'm trying to put everything in the context because again if there really were documents and i'm not strong to shift any burden that they know exist or exist in a regular business course that would have helped or they could expect to be present they didn't cite any of those  i don't want to confuse actors i perhaps if i gave you the wrong impression i'm sorry your honor i'm not saying they didn't get all the documents ok with restraint you're trying to say that we don't have a thirty six witnesses to address all the doctors there were certain financial questions that they identified we cannot produce a thirty b sixty four but every financial document that we had that we could put our hands on was produced but this is all quite frankly the thirty six ok violation the judge found a sanction as a result of the discovery but there's no way it should get to certainly misses the rocco ok who is the judge said said there is no evidence indicating she did anything wrong how do you as a sanction what's the basis for treating it has always been that way in pennsylvania for instance as you know it's different in jersey if you get a judgment against one you can enforce that judgment in pennsylvania it is long been held that you cannot violate just because you get a judgment against one does not make it a political yesterday i think that on the merits it be placed against her i know of no case law that allows for that to happen either  if i may or i think this is a problem particularly with the way the papers were submitted in comparison with the record the judge never found that any money was siphoned off ok by john bennett or nanc that are you referring to the i b m settlement in the i b m settlement that was thirteen and a half million that was reached your honor i do that was some litigation against i b m where they had to have a funder because they didn't have the funds to bring the litigation under the funders agreement they had a factorial where they got four times what they gave well what i'm trying to explain where the money went your honor that's that's not correct on it mr berry moment of the general counsel testified and we provided the settlement papers as to where that money went on that thirteen five six and a half went to the funder burford four point one went into that's correct  so you are i'm not sure i understand the question perhaps i missed something you asked me why they should be able to pierce the corporate veil yes and again i hope i understand what you're saying on forgive me if not i believe what you're saying is that we're not saying the judge appropriately ordered the sanction because the judge made the decision for the session as appropriate and just wasn't has that insights in his opinion he has the authority to sanction them by piercing the corporate veil for their actions well i guess in on i'm not aware of any specific case other than the case law your honor that goes through the multi factorial test that we have in pennsylvania and that's one of the things the discourse should be aware of is a their briefs wonderful want you to focus on the urgent case in seven circuit long eight circuit law instead of doing any analysis on the merits as to what happens in pennsylvania under our test well let me as you look look  structures information so you can be willfully blind and not suffer the consequences no and there's no evidence that's ever been submitted that she was willfully blind that's a little different then deciding to allow somebody to make decisions in business decisions for you nance terracotta does not have the education or the like or the experience that dr bennett did for instance so she deferred to him but that doesn't mean that she automatically has a level of accountability if she does his opinion he's very thoughtful and knowledgeable and he said it during hearings where this i realize that if i take action this might not provide them the relief that they want but that's not his job to provide them the relief they want it's  he sanctioned the person and the company and if the company turned around or did a you know there's always that sanction or that penalty is still there and they'll suffer the ramifications but it doesn't mean if it doesn't give them the relief that they seek that sort of e mails related to the case now the part of the basis for are you saying he did use that it is in his analysis his piercing analysis that he made that sort of portable and moved it over into the sanctions that's correct terminations if you want to plug it in  in into the into the marriage that's exactly right what i mean is you again because i don't want to be confusion do you do you want us to analyze the sanctions or are you solely on the on the merits as it were of the  piercing under the under the pats are you factors well we didn't actually look at whether or not the sanction with legitimate because the defense didn't appeal that aspect and so we weren't looking to pull that so we didn't grief it but i can tell you that when we were seeking a veil piercing in the underlying case we did file papers and cited authority for the proposition that when you have systematic discovery misconduct like this bill piercing is an available remedy and i just i apologize that i don't have those cases available that we briefed on in the underlying sanctions motion we would prefer obviously that that the court be mindful that the trial court be mindful of the realities of the discovery situation because as your honest reporting out there they failed to designate the thirty six witnesses on the very financial transactions that we were supposed to we had the burden of of showing were shams you know when when the judge denied our summary judgment motion on p seventeen of our opening brief we pointed out the six the civic questions that he wanted the trial to focus on and one of those was on the the net transfer of twenty four million dollars and was there a business justification for that we couldn't put on testimony about ickes business justification because according to counsel they had nobody there who knew anything about it well that means there's no business justification for it and that's what our expert did testify to but to the extent we didn't have more information about that and where exactly the money went right well i don't want to do anything to make it harder on myself so certainly i you know i'm not looking to do that intense or one of the court's previous questions we don't believe there is a basis under pennsylvania  right that's right that you're exactly right that's exactly right is well that's what that's what we're seeking is for a remand so that the district court could could consider the factors in light of the discovery conduct so in addition to the fact that he didn't take those those matters into account there's no indication in his memorandum denying our motion to amend judgment that he considered the factors together and he viewed each one in isolation for instance he said that yes they failed to abide by corporate