relevant to flexible handle toothbrushes are not relevant to this case defendants may not comply with such requests for production that's a denim forty two this is a primarily factually based argument which i find a little bit odd but that's where th over the tip of a finger and have no handle they're called in a catalog no shame shank being another term for an all you can find those toothbrushes pictures of them in the appendix at eighty one twenty five which is the  that mishandling gave a at least misleading answer to some questions at the november two thousand and nine deposition if that was it's what i guess why is that not all by itself is sufficient wrong to support the default judgment here against the background of earlier now  uncontested errors or worse leading to the initial section certainly and that's what i would call leg two of the stool holding up the most thirty seven order let me address that this is a price she controversy i understand the trial court's finding however we're dealing with a written record here this is not a matter of interpreting testimony of live witnesses giving way to credibility you're in the same position the trial court was in the deposition this person who is not a native english speaker said chris i know it is it's certainly true that i gather it is true the judge was not at the deposition correct nevertheless the rule about deferring to fact finding does not apply only to fact finding based on in court observation by the fact finder correct lot of it is simply somebody's got to be decisive it's going to be the trier certainly and let me focus on the question of assume that's the only wrong in the case why doesn't that support the default damages let's assume that for your hypothetical takes two pieces of the answer there recall the part procedural posture the case at the time of the rule thirty seven order summary judgment had been granted on liability defendants were as a matter of law not liable to the plaintiff because the planet had not shown any issue of fact relevant to liability under the two eighty six patent which is the time of all but a few of the challenge sales had not yet been issued then we go to the sanction that is imposed the ones so it turned out that the summary judgment of the non liability was plainly incorrect that was not raised i don't disagree that you may choose to find that on this record that was not raised but that is at the basis for the summary judgment correct or injuring the full judgment is certainly not the only grounds for the fee shifting because he calculated the featured thing based on the things that he found were wrongful correct and didn't limit it to the costs associated with those i did not understand that there is a challenge here to the amount of of c s just the amount i know there is imposition on the attorney but let mounts of fees as somehow improperly going beyond either the document stuff that led to the adverse inference sanction or to whatever the events where that underlay so is there some piece of that that went to the nun and then november two thousand and nine deposition and in the trial court so you do not have a challenge on the record to review and that is not assigned is there on this appeal so for the purpose of today no question about the fees is something that i think i'm here in time to talk to you about if you find that you're going to affirm the trial court i think the number correct the judge talked about other things correctly just talked about a lot of other things there were fees in there related to extensive document discovery on the price sheet the prong two issues there were fees in there regarding the deposition of the chinese individual mr  lie there were a lot of things in there but those are not challenge but there's we're not talking simply about two hundred thousand dollars for a two page excerpt of a deposition it's much more than that but if you accept his order is correct those fees are not challenged good but your argument is that we can't sustain either the default judgment or the fee shifting based on agreement with the judge about deposition test i don't think you can because the zone of discretion has a limit if not also the question of the default itself i agree with that on the deposition itself the important thing i think to point out is that all parties to the case at the time the deposition are being taken understood the notion that the over the fingertip tooth brush to clearly not be within the scope of discovery if you look at eighty two forty two there is a couple of questions yeah but she's asked i mean i don't think that those questions can be interpreted as limited to the flexible h toothbrush well let me let me just turned eighty two forty two in volume two very quickly and actually this is eighty two forty three she's after the short handle is just a hard plastic for its product yes then he goes to a new topic and this is eighty two forty three the november two thousand and nine deposition so at the very beginning of volume two of the addendum what one page are we talking about here eighty two forty three that helps at the top of page six of twenty two of the is that she then asked the t d s would you describe as a no shame finger broke figurative tooth brush that's also made from hard plastic answer no that one is like silicone the piece of plastic like baby's plastic there kind of s fingertip one they called a no shank there's no handle nothing the next question was on the priceless that's the totality of the plaintiff's choice to interrogate the principal of phoenix about the tooth brush that they later claim  incredible piece of evidence and it simply isn't and she tells him correctly that it has no handle as george martinez found in his march two thousand and thirteen order that's it eighty twenty seven at the beginning of volume one right but it's the exchange that was just a misleading and knowingly misleading answer right here that maybe the language problem could could result in a different interpretation but this is what we have somebody got to interpret yes might have been the case that if she had given a full candid answer that proposal that she was about to make to west virginia  eight might a candid answer have revealed that well two pieces to that the imports after the issue of the patent are still probably subject to the summary judgment i do not agree that it was plain error because the product was not properly marked and hamming in phoenix were never given the sufficient notice absent marking to place my notice a pattern so there's still a reason why that falls outside of them and then the west virginia product i'm not believe on this record use the t thirty eight s which is the product that reads on the two eighty six patent because the t v f l lacks the notion we know was never sold software never sold the t v s the other no shank was only sold twenty one hundred some odd units well before this controversy eighty sixty two that specifically comment about the t v flat state to a t sixty to eighty five one forty six one fifty three one fifty one and more importantly the photo of the t v f l x is a couple places but the direct side is eighty one thirty three and still talks about no shank no handle she tells you that she applies the t v f l x name to the products you buy from them and that is in the record but i agree with you we're going to get to that point it requires accepting that the testimony that she's given is true we do not have in this record testimony from someone from image plastic saying yes that's what we sold her we want a testimony from the warehouseman saying that is what i put in the box but she is the principal of the company and her assistant who was not a part of the case of both testified completely consistently every time that's brought up that's the factual record on that at the at the damages hearings and district court says i can't find this is a function correct he basically backs off on what i see as the necessary factual underpinning of what i call prong one of the three prong supporting his order but he doesn't take the next step of saying and therefore that's not a reason for the sanction the mr law used to i think is very factually simple there's nothing in this record t thirty six notice and if so on what companies or what parties behalf was he supposed to be corporate representative it is my recollection that loops wanted his deposition as a representative of a general industries doesn't reveal to me how it was later discovered that the july two thousand and eight import actually came in that was discovered by apple only loops through for your request that it sent out all through the litigation every jurisdiction and that's proper it's a tooth brush the t v thirty s yes yes my recollection of the record is all the sales were disclosed up front there was no mystery about that it's the search for there being potentially later sales that had obviously requests going and so forth which of course you understand it there was no liability until the notice was sent right and there was a dispute about whether this june letter was a sufficient notice or whether the notice heard only upon the file a complaint is that a fair sixty four five sixty seven five seventy ok and they did this doesn't seem to me an important to me that as as described to us the whole litigation as to the patent was about whether imports took place after june two thousand and eight or whatever argument there might have been about when the marking was sufficiently noticed so and you've got s imports my recollection may be wrong on that but i do know that she got the letter and then stopped selling because the letter went to her chip from scratch with new york and there was still a shipment coming over which is still in a warehouse there is a lot of product there you'll see in the record sitting in a warehouse still sitting there on sold when she got the letter so i believe there's a further part that it's likely discloses that because my understanding is every single import is disclosed in the record and i would be shocked if it wasn't getting back to the thing in the summary judgment this was a marking case of course the original summary judgment was granted because they did not properly market products until november of that year but then after the judge found sanctions he decided to say well i'm now going to have a sanction find the june letter to be sufficient which i didn't find earlier which i assume he can do as a sanction and then that makes the after this is the adverse inference no this court was in fact an act of infringement to the extent we're saying that the sanctions were not proper were disputing that because the initial finding was the letter was insufficient law and then the sanction caused the letter to now be sufficient notice so we're challenging that as part of the overall sanctions as well as monetary sanctions so you're challenging the finding of infringement through the sanction but not the actual infringement finding itself if the june letter was sufficient then she imported after that june day that would have been infringement and damages would have been done would have been appropriate and the fact that's what happened it did there was a boat bringing in some product do come in after june but the letter was insufficient based on the law that was initial finding that was the basis of the summary judgment that it wasn't until november that any of our product would have been french so as a result of the whole  being either is zero if the notice was insufficient or was it fifty four thousand dollars or something that's what we're talking about yes ok and and on the sanction orders which i know you in particular care about chair and fifty four thousand for amor care for the damages but your central argument on your piece of it is that i take it that as to applying or imposing the two hundred thousand or whatever it is  sanction on you when the attorney there actually isn't a necessary it's a sufficient set of findings to justify that one usual result in particular not even the specific finding that you acted unreasonably in figuring out whether mr lie was having these or not correct correct there's  no findings of fact and there's no record of supporting this was a case where throughout the discovery there's just no evidence at all that i or my office countenanced caused supported or anything to do with my client doing these things either through negligence or through bad acts in fact i think the records pretty solid that every time there was a question raised by him or care such as the issue of the iraq suspicious toothbrushes i had the client gather up records we sent things over that were beyond what discovery required to assure them we can move forward without the suspicion going on there was the twenty six hundred pages of our twelve million other toothbrushes because i wanted them to see the entire universe and sent photos  visa i don't have the papers to get here and as the record shows i am in contact with the state department i was sitting in correspondence saying you need to do something to get here the judge wants you to be here please start on the steps i called the state department found it was about a three month process because of china and i thought that would be too long so i went to the judge and say here's our problem and then what about all the invoices and purchase orders and other papers and documents hemming was referring to  a deposition that i guess it was promised those would ultimately be delivered to the other side and they just never got there and i can only say i strove diligently to get those and they were not forthcoming it sometimes happens with clients that you just you can go to their office you can go through boxes with them you can look around you can untangle the the spider webs in rat's nest that the documents are there there's an attorney there's just nothing practically you can do to make it happen what about a litigation hol d apparently there with somebody to depose saying that she was deleting e mails or just trying documents even after the discovery order i did as i always do sent over the initial discovery quest my clients had a conference explain to him the importance of this and told him whatever you have to keep it like it is this is a small tangle little office it's messy they had one little p c and i believe she was getting rid of some e mails i don't i'm not sure they were connected with discovery issues in this case but she was getting real e mails i found out later to make more room on her hard drive which is unfortunate i didn't say action and i would never sanction that and i told him preserve what you got if we need to in come there and bring in another disk and i don't know where we'll be fine with that so this is not a thing around trying to get the client to be sneaky the facts one in this case for me and they would win this case for me again because this factual record of the doctor says there was never a price sheet for the t v thirty eight s it was never a toothbrush made from a general sales it was made just to target this new york contract which made her a few million dollars she made it she didn't put a price she she sold it only  court's orders here to be somewhat confusing there's a reference in a number of places to declarations that may have been false and i assume that you agree that the fact that something may have been false house if there is in addition to that evidence demonstrating that the same witnesses did provide false testimony under stand you can be sanctioned for false testimony but i don't partial summary judgment a decision on my question is can a district court sanction somebody for civilian declaration that may have been false in isolation i would say no ok so what exactly here is the basis for the default judgment and for the monetary sanctions what do you understand into a second one i suppose is the hemmings or headings whatever i deposition testimony yes your honor and one is the failure of the representation to made about the on availability of left right correct what in addition to those two things the the  problem with that is not only has she been deleting e mails but she testified that there had been no litigation hold weird where do i find that in the district court's order here i read that circumstances surrounding the oil lay deposition what else and there is also the the course of conduct that led to the prior to discovery or the failure to disclose information which the plaintiff only discovered because of the freedom of information act requests critical among them being the west virginia and the timing of those bids relative to i think it was a day or two all the the evidence that was discovered in the freedom of information where where does he say where does the rely on that in the order in the order yes i understood him to be relying on that in in determining that hemings deposition recites or that the beginning of the order says that the plaintiff has discovered this information after the close of discovery through freedom of information act final order in a series that the court took a measured series of steps first he ordered that they disclose all information regarding the flexible handle tool rushes they didn't do that then entered another or what what did they not produce they well we now know that they did not produce the price but also never in this case they produced documents that we would expect to exist technical specifications communications with manufacturers in china whether via email or with contract your product what are we what are we talking about whether one of the problems with the case was that there they are loops do not have control over what i am or karen was calling this product and it named it various things as far as is a flexible handle toothbrush well he goes he does say that usually i can't tell either way because i think he's rejected the or is not willing to accept the testimony of ms ha who is the only one who tells us that the just picture that we're getting all your evidence that the t f l x is a flexible handle to two things one is that it does show up on the price  e at a price point which matches the price point for the the the flexible handle the testimony was that it's four to fifteen cents for a regular tooth brush these flexible handle tooth brush costs on an order of magnitude greater the testimony would have put that price isn't a flexible handle toothbrush because you can put your finger inside the handle it's just like the the the other one which was a fingertip tooth brush that had no handle they're trying to make it sound like a handle less tooth brush the trial court was very clear in its prey previous orders that if there is a a flexible handle of any you  tooth brush you need to produce it and what we have here is of defense was the trial court i think correctly in the order noted that even if you accept the testimony that this t v f l act is the picture that we have is the t v f l x we don't we don't know that for sure but if you accept that it had a flexible handle coming off of the of the bristles and therefore for the defense to unilaterally decide not to disclose i don't believe so i'm not sure whether there is that's in the record or not but they made a pitch to sell among other things a t v flex to west virginia that's fine but we don't know the record whether it was ever a ship that made of the so called t v flaxen at the united states or west region well as i recall if there was we were not able to discover and i don't believe there was a sale made in west virginia because that would have been part of the damages presentation and and the trial court would have included that if if we have been able to prove a sale to west virginia what we don't have and i think what troubled the trial court the most about this is if it weren't for the freedom of information act we would have found out about west virginia now there was no sale ultimately but where else out there were there sales that actually occurred or contracts that led to the importation of the singhs maybe the sale didn't go through but we'd still be entitled to the royalty in a july two thousand and eight import where it was part of i don't recall what their position was i heard today that it was a shipment that was in transit and but i don't think they ever said where it was going and that's the problem is it's it's not understanding why why i kept looking at the packet like this is about patent infringement the patent claims demand a whole lot more than the simple term flexible handle about which maybe one could argue is this piece of it a handle or not a handle is there any conceivable way that the claim requirements here which take on for lack of a full column they talk about the all kinds of things that as i read it could not possibly apply to the down to the middle knuckle of t b f l x why doesn't that make the reading of the discovery it's not an infringing product but that doesn't fit the trial court said you disclose all of the documents regarding flexible handle toothbrushes if they had done that we could have gone into that we could have tested it and we could find out whether or not this t v f l x is or is not the one that they showed up with the new one the rapture over the finger is  maybe it is maybe just that's the problem the problem is its discovery leads to the discovery of admissible evidence we were searching for admissible evidence of in of the sale or importation infringing toothbrushes and if if there is in fact isn't one we've resolved it but if it is or if it leads us to the discovery of other importation or sale of infringing products the point is we were denied that and we were denied that because they chose not to follow the order that the the detroiter court made which is findings about reasonableness or worse than take the whole us whatever of counsel and my collecting to remember something the the trial court did not specifically include counsel in the recitation of the factual background the misdeeds delivered to the sanctions i agree with you i mean aren't those findings critical for what is after if the there's no expressed plan there's clearly implied findings that mr clean peel was participating as he did not there's undisputed internally more dissipated and he came into court and he said i of transmitted that to the court how could that be sanctionable i don't believe it should be but i think the trial court determined that based on this pattern of practice of not putting a lit writing the order to say things that it doesn't say that's the problem and i guess i apologize because my understanding is that it's not at the novel review but if the trial court has not made a specific finding that this believes needs to be made if the record supports that finding then in reviewing for abuse of discretion this court can in up hold the trial court's ruling in other words it's not a novel review if there is no specific finding but the record supports it then there's no showing of an abuse of discretion that's why i go beyond the order your honor and i know it's gone over my time  scientists claim that i was never instructed to preserve information from the amur care computer system after the filing this lawsuit while isn't technically correct i was never specifically instructed to not delete any information in the computer system early on in this case i was instructed to obtain copy turn over democrats attorney and preserve the originals of all documents in any way related to or concerning the t v skinny thirty eight s toothbrushes it was obvious to me from that instruction that i was not supposed to believe the type of information from that type of information from the computer and i have not done so again as stated above between the time i learn of us law students search for produce documents i did not delete any emails from the system any e mails that the evidence in the record on siegel and litigation hold it cetera next a unit trading the office worker the want to control the computer agendum eighty five another declaration of siegel from earlier in the case i cannot recall them or care making any sales of the t v f l act of any customer and believe this tooth brush was never sold to any customer this leads to west virginia the west virginia bid included a document that contained a t v f l x on the price sheet that bid was not a bid to sell the t v s alikes but was to sell other things that it was an unsuccessful bid the july two thousand a chip meant of documents was pursue it an existing contract with new york that predated issuance of the patent those toothbrushes are the t v thirty eight s they are the ones accused of brains we don't argue they don't those toothbrushes today sitting and mackerras warehouse because we told new york because of the risk that after that loops would claim as its claiming that they were infringing we would not ship them in new york said we're not going to hold you to that contract are getting violated if we're on a paper meter but that's fine that's the totality of facts on that record there was never is the only word that comes to mind is soft astri to say that the portion that fits over the finger should be known to be a handle to the point that everyone should read the judge's discovery order to know the tb f l x must have documents produced and that's a reason to deny summary judgment has been granted grant all default judgment sanctions grant attorney fees sanctions any even sanctions counsel that is an abuse of discretion if it fits over the finger it's not a handle what do we call the thing we put on our hands in the winter when it's cold it's a glove does the glove have ambles no it has fingers he goes over the edge what do we hold in our hand and our house it's a paint brush it has a handle because it goes in or that tooth brush does not have a handle a couple more points what we have here is plain tips on willingness to accept that the totality of the potentially infringing sale of the tooth brush that reason meant to eat six and where two new york and new york only and the last import was alive the way the plaintiffs as you'll see from this record did not cease and may have continued to today for all i know sending for your request after request because he will never accept the truth the problem is this trial court's judgment this discovery sanction order is not