before we start i want to do something that i neglected to do on tuesday which is say that judge livingstone and i are pleased to be joined today as we were on tuesday by the honorable jane risk on any of the court of international trade you that having been said we will hear whatever has to be said in treasure chest versus david mors twelve days before judge buchwald that was the equivalent of the trial starting so if that is accurate what i just said then the evidence that was turned over in that affidavit would be the equivalent of turning over new evidence the day of trial and that led to the appellant my client did more to national being hamstrung an ambush our position is that the evidence is insufficient even if everything's accepted  and on that point we would say that the strongest argument for the evidence not been sufficient that they satisfied section one of their contract was that there is no evidence that three one hundred thousand people viewed on a weekly basis for two products for thirty five weeks and so this court would be completely correct in holding that the evidence is not sufficient that that section of the contract was not met and if they did not perform their contract their breach of contract claim fails on the new york images as i understood it you don't have nobody has to click on any you hat so they did five hundred thousand e mails that would be good or if they did three hundred  the specific thing you said about the digital thing to me what you think which would fill the digital requirement we would say now were the defendant we would say exactly what the plane of said i understand you say which is what their statement that we fulfilled our digital obligation is insufficient that they had to say something more specific than that that's your point right the fact that they said it doesn't make it true that they said it so i think your argument is that that wasn't specific enough is exactly what the plaintiff said now remember the defendant they said actual eyeballs on the posting so actual eyeballs on the e mail actual eyeballs on the facebook post but even if three hundred thousand people it was sufficient just to put it on  they only show that they did that one time for one week and not for thirty five weeks they didn't the evidence that you think they should have put on so you didn't even testify your honor that he did he put in his a davit that he fulfilled his the contract will requirement that's what he said ok so he got on there and you cross examine them and you didn't say well how many how many e mails did you send how many facebook postings did you make you didn't do that that's correct your honor because it's not my burden to prove so i'm not going to ask questions that lead him to prove his case and we'll leave it up to either his affidavit or and mr morris didn't say anything about it either the only information that mr morris has was exactly what he testified to which is out of a one point four supposedly malians he got zero hits so no one ever contacted him after this mailing was supposedly done mails after the e mail  thousand responses they call that six thousand leads but we never actually when we followed up with those leads no one that no one knew what we were talking about we got zero there's a little confusion there and i think your honor is correct they gave us what they called six thousand leads but of those zero people work became customers were customers or knew what we were talking about when we contacted them well you just give me your definition of digital it's in the i can send a large about what the judge said and her and i have no disagreement with what the judge said at this at this level we can on the definition i can adopt out what i would say is that they haven't shown the evidence that actually happened particularly because they're supposed to be two products for thirty five dollars weeks and part of the rule twenty six a disclosure as you would expect there to be all sorts of information turned over at that level we never got to the point where we could file a motion to compel we tempted three times with judge buckwild to ask for permission to file a motion to compel but all three times she had a pre motion conference denied our right to file to file specific document requests right that's correct is by that point in this was just a litigation strategy is one that she recognized and i stand by it cost of litigation just became too expensive this was one hundred thousand dollars contract we had three motions to continue to push forward on this we finally were the point just like with the discovery now you have proportional you know discovery we got to the point where we made this tragic show your cards prove that you add a clip from the contract if you do that we'll pay you but if you haven't then we don't feel as if there's an obligation could you just following up on my colleague the declaration says treasure chest published all of the additional materials provided by david morris and treasure chest weekly electronic newsletters and posted same on social media pages what's deficient about that so that is a correct statement in our briefs we say that's a half truth present is the whole truth we didn't didn't ask us and we didn't turn over any other electron or whatever they were that they did what they said they did in a very wooden fashion but there weren't two products given there weren't thirty five dollars weeks worth of emails that part of the contract wasn't fulfilled i'd be like if i said you know i went to a giants game you know every giants game you invited me into and there's an argument what was a full season or not well you only invited me to one so by definition would only be one they never made the argument that we did anything to inhibit them from  two products for thirty five weeks why is that not sufficient because it's not our burden to put forth the evidence that should have been produced is evidence i'm sorry i don't know if that's evidence the evidence that they say it is evidence when they said we did everything we publish everything you gave to us but when we say that's only one thing and there's only one thing in the record instead of seventy that that would be evidence your honor but not sufficient evidence to show thirty five weeks for two products thank you thank you m