that is correct it was only a one month delay of the point of did in fact provides coverage responses to the defendant it is their argument the basis of their argument that was within their motion to dismiss that their response was simply  those records at all pertinent times the plaintiff advise the defendant that he did not possess any medical records or any medical bills but he did provide the names and addresses of the health care providers whereby the defendant could changed them now this court has identified a trial judge does have vast discretion in assessing sanctions for a violation of the sky every orders but of boy abusing that discretion this court outlined four factors that i will address each independently st your honour's is whether the refusal to comply to the discovery resulted from bad fate and that can duck was in whereby he listed medical providers he listed witnesses and he also advise a defendant candidly and frankly saying hey i don't have any medical records the plan of then your honor supplement it and provide defend this and my opponent will present to the court that the plaintiff will not even provide basic discovery material which is wholly untrue the fin that was aware of the medical providers anything to advance their defense other than following a motion to dismiss their yonder the defendant failed to meet their burden to show that the plaintiff acted in bad faith and acted in a total does not automatically mean that the party at the tape secondly you know on the nd factor that the trial court failed to consider is the timing whether the alleged misconduct of the party is attributed to the attorney or the client counsel for the appellant advised the magistrate on several occasions that any delays in providing supplemental responses was due to the inability and capacity of the plaintiff the trial court nor the find that there was any responsibility on the part of the plaintiff so right that's correct that's correct and that's important in that's a big factor that this court it's a consideration national and also my opponent were actually can see that no one really was able to figure out whether this was a tribute to the plaintiff or the attorney and if you cannot make that assessment then you cannot provide a drastic remedy in the form of a dismissal thirdly and most importantly the rd factor is that the defendant was able to show that it was substantially prejudiced by any delays  discovering sponsors the standard is not actual prejudice it's not a little bit is substantial and they're only able to do so as i've already stated they had the names of the medical providers since mail two thousand and eighteen they didn't issue any subpoenas for the records they didn't oppose the plane or they didn't conduct any rule twenty six dollars f conferences to get an explanation of the answers they didn't even respond to the plane of discovery for over six months so they're alleging that now with the court has to also take into consideration there was never a trial date set it was just simply a case management order that was consented to by both parties now there would be actual prejudice if there was a trial they said in the plaintiffs ac inhibiting the defendants from formulating in advancing their fits but in this case it was just simply a discovery case management order that could have been extended by the court or by consent of both parties lastly and most importantly the last factor that the court did not take into consideration the court did not consider or even employ any less drastic sanctions now the court did mention it would exclude in what particular pieces of evidence will be excluded that would be tantamount to a dismissal this court has ruled in oprah's surgery versus sonic audio that there should be some sort of your case will be dismissed the only instructions within that discovery order is that the plane or provide supplemental responsible than twenty one dollars days so there was no order by the court which is required to comply with due process that if he doesn't supplement his responses with oral responses within twenty one dollars days his case will be dismissed but also the court did not employ are considering any less drastic sanctions before dismiss the case the only time that the magistrate even contemplates less drastic sanctions is in his report and recommendation that the case be dismissed of course it is not the business of this court which particular less drastic sanctions should employ but in this particular matter the factors that are listed within oprah ex the trial court could have stayed the proceedings particularly in light of the essentially mr with prejudice that is correct a dismissal would prejudice also motley the plaintiff had every desire to participate in discovery and that evidence by the fact that he gave response cases put the notice what then the discovery orders stating that if you do not comply with this discovery order of the will dismiss your case and secondly the courts within the cases cited by  before this court there were no less drastic sanctions even considered until it was time to dismiss the case and then secondly there was no notice provided to the plaintiff that if he does not comply his case will be dismissed discovery thirteen in a robert towards one album i ask who are you witnesses going to be because whoever your witnesses are going to be i'm probably going to take their depositions several other basic  tori's like identify what exhibit she may use one in iraq the toy that certainly is relevant is have you recovered from the entries and if you haven't recovered think that's the last in iraq get torn up number thirteen i believe and if you haven't recovered from the andrews tell me why you're still suffering from those injuries i got no answer  regarding discovery and mr hayes and we were talking about the discovery propounded on october th two thousand and seventeen this is a conversation taking place on january th two thousand and eight team and and part of his opposition was that he disc objected to discovery because it had been propounded prior to the route twenty six dollars of conference that is true i did do that but the room twenty six self conference was held only sembler tune of two thousand and seven thing so at least he said from december january and february to to respond to discovery i'm not looking to  not comprehensive but what what factors can you point to that justify dismissal with prejudice as a sanction well i don't know what else you do at the hearing on the motion with a lesser sanctions when the magistrates and lesser looking for tony face up a pass on that and so i guess but passing on that may be my best shot myself in the foot but i waive the attorney sais i just wanted answers that he had provided medical records pacifically the chiropractor medical records and the judge pacific les mis cork and you got those as a judge i don't recall receiving those but i could've made them a stud look in my in file and i'll say well in the same opposition counsel file he said i have no medical records and within a few days after the conference i suspect when the judge reviewed those briefs he realized that and i filed a supplemental with the recall correctly in my brief pointing out that that council representatives set me medical records i can't find any medical records in his own briefing he says i identified any expenses but if you're giving me the medical authorization form out of gotten myself and he still had not and then if any injuries resulting from the accident and whether or not he had fully recovered as requested think i can't take the depositions of the witnesses because i don't know who the witnesses are any won't tell me and i think this is a typical in that court the discovery issues take that long to get resolved because a lot of courts now just have the media phone conversations these issues get resolved within a week or so well there's an issue of order to supplement the discovery that order can withstand i think six days of the hearing and it was a four month gap and the motion to compel right that's right yes that's not unusual not and not in that particular that's all i have our answer any questions if anyone has any or thank you mr corker thank you mr haynes for about of they just didn't use it just like how they were not to watch the what's your justification for a delay and for example providing names of witnesses obviously other side can't go investigating have depositions or in a raga tori's regarding particular witnesses if they if you haven't given the mange it seems to me that's a very easy st step your client was there he knows who the witnesses were so what what what's the reason for that continued to lie on that one sample america oh yeah we did in fact provide the names of our witnesses we did initially may have two thousand and eighteen where we gave the names of the medical providers which of course were going to be witnesses as well as the definitive question and there was an additional officer who was present during the incident incident in question from another parish so we did provide that there was responsiveness and that's the basis of my argument you know we gave this information to them but they simply just did not use it because they were status five with our responses but that does not stop them from advancing their defense that does not stop them from their investigation in this matter the record is quite clear as to what was done by the plaintiffs but the only basis of the defendant's argument is that there was a delay there was a delay and i will make that concession to the court there was a delay in some of the responses but the late alone does not warrant a dismissal with prejudice lastly your honour's as i stated within my reply brief the defendants just as the argument for this court has not provided any specific facts as to how it is actually substantially prejudice in this matter they simply haven't made a conclusive restatement of this court to suggest that they are substantially prices well suppose th much going by and these people don't know what might happen to them so that's that's one of the reasons for abiding by the rules and in the deadlines it's not fair to them that's correct you're  absolutely correct but the thing which i mean is they were given the information but did not use it they had the names of the witnesses they had the names of the medical value just said that you hadn't provided the names of all  the magistrate decided the motion that was not out of course i don't know what we're going to do here but if we should decide to reverse and remand i'm not saying that's what we're going to do if we do that do you promise this court that you're going to be absolutely up to date on providing information and meeting all of the other courts scheduling orders and all of the other deadline which is correcting out of there's never been a intent by my client