please the court the court is familiar with this record i don't want to rehash everything but i would point out that in this particular instance we were talking about a difficult litigation matter that resulted in terminate the defacto terminating sanction for terminating sanctions and yet they gave the terms of a discovery sanction that ended up terminating the case it was forty thousand dollars ten thousand dollars every two weeks the debtor made one payment failed to make the second payment the case  terminated and that was also at a point in time when a nother deposition had been set and the debtor didn't get an opportunity to appear there were plenty of times the debtor did not appear in other depositions not every single one of them was the debtors fault but it was a circumstance that the terminating sanction the terms of the terminated sanction and basically the terms of the discovery sanction ended up terminating the case ten thousand dollars every two weeks for a chapter seven debtor word the seven it was originally a chapter eleven and then it had been converted to a chapters of salomon bankruptcy that's a bit of code if i think the case was originally filed in twenty ten i'd have to actually look at it so she'd been in bankruptcy for some time and there's a tremendous amount of litigation going back and forth but years yes years so how relevant is the no assets put i believe the debtor testified it was in the record that she did not have the means concern that the debtor had was her ability to make the payments and she struggled to make them but at that particular schedule it became a de facto terminating sanction did she ever offer any financial information any corroboration for a statement that she could make that payment i do not know if she actually submitted financial statements but she did make that as part of the record and explain and i think she tried to seek some sort of payment schedule in the court was not it was that i do understand that the court was relatively fed up with her at that point in time but by creating a payment schedule of ten thousand dollars every two weeks it was it almost became impossible it became an impossibility despite the actually did make one payment of ten thousand dollars is there anything wrong in principle with laying out a lesser sanction lesser than terminating sanction and then imposing a terminating sanction if that lesser sanction doesn't work for some reason i personally have seen courts do that i'm there are times when if the debtor is just not going to get it then the courts ultimately lead to a terminating sanction i personally have seen judges in my particular district in santa ana issue a sort of a rap on the knuckles are going to pay this amount of money and it's going to be one hundred dollars a day until you comply so that usually gets people's attention and if that doesn't work then they will call in the marshals and they'll bring them in and say for certain reason you don't and you don't seem to be taking this seriously but that would almost be placed upon a large corporation not an individual but for an individual in this particular circumstance without a demonstration that they had some sort of assets or that they there was an argument they were hiding assets or they just weren't complying or they weren't surrendering overseas funds i've seen cases of that and again there's no evidence to support that she proved that the i'm sorry here on there's no evidence in the record that supports that she came to the court with any information and said here's my financial no your honor that is correct however in this particular instance when she's looking at claims against her and multimillion dollars i believe that she understood that how serious it was and then she did come up with ten thousand dollars when she couldn't come up with the second ten thousand dollars her case was over to say that you know well she could have paid it she just chose not to and she preferred to get a multimillion dollar default in two different cases i don't know that that that doesn't seem to square with reality i do understand that you know that i guess the reality is the point to do that would take some some action would have been at the creation of that order not afterwards when she comes in and says i can't do it because the record indicates there was there was a discussion between the judge to negotiate and to some extent the terms of that repayment schedule or that the payment schedule in that particular circumstance when you're arguing it's been my experience with the judge when you're arguing with the judge as far as what the payment schedule is the payment schedule will be what the judge wants it to be well it has to be constrained by the ability to do it and the judge indicated i don't want to  fail so that again the problem that i have is that there's no evidence my hear what the court is saying but the debtor did testify in court that she was not able to make the payment she struggled to make it the evidence is she was unable to make the payment in light of you know she's going to be looking at a multi million dollar judgment entered against her and that was after the fact not not at the imposition of the schedule and again given the history which just taylor kind indicating took years wasn't the court within our rights to to say what she said too little too late the court has the power to do that but under the circumstances with the same fashion at that rate again for an individual a ten thousand dollars every two weeks you know that she could make the first payment she could make the second payment there payment you're gone three and a half payments you're gone again ten thousand dollars every two weeks and i do understand i hear what you're saying as far as you know what is the evidence she couldn't make the payment but we don't have there's no evidence that she had all sorts of resources and she was just on her nose  and some you know not every all of them were her fault as far as resetting the depositions but the record is what it is it's yours yes ok and given that it was yours and my  forty thousand dollars number out of context is one thing but in context the judge actually determined to assess substantially less than the documented fees connected with the matter correct that is correct  you can name the price but only in the terms and the concern we have in this particular circumstance is the terms of and thousand dollars every two weeks were such that it was just a matter of when the debtor was going to fail with her particular circumstances and i mentioned the sort of damocles hanging overhead of these multi million dollar judgments to say that she would take it seriously so if she had the wherewithal she would have done it and if she didn't again we're not talking about forty thousand dollars within six months or ten thousand dollars and five thousand dollars a month you know as a show of good faith we're talking about terms of ten thousand dollars every two weeks didn't make the second payment cases her case was terminated familiar with two quick comments i know that when the hearing took place i'm december sixth papers could have been filed demonstrating a financial inability to pay the tentative ruling was quite clear that sanctions were going to be imposed better tows not to do that it was clearly an ability to come before the court and fall on the court's mercy saying yes i want to participate in the discovery process even though i haven't done it six times i'll be it one was the fault of the talent of ellie rather but there was the opportunity presented itself to demonstrate an inability to pay or at least an ability to pay over a longer period of time i don't want to refute what the court has already it's but she did not say argument was made for a more specific period of time there was no evidence to support it but she in effect sad i'll do it but i need to do it i think my plight that's correct your honor in fact what judge mine did was order the parties to go outside and have a conversation about two things one when when and how was the money going to be paid because mr margulies who was representing the ellie's at the time in the case was demanding about eighty seven thousand dollars and wanted it paid all up front one time before the deposition because he had prepared numerous occasions for the deposition only to be told an hour before or a day before the depositions not going to go forward those are different issues but when they went outside mister had counsel they discuss the aspects of the ruling that judgment was contemplating the dollar amount that was being contemplated the payment schedule that was being proposed and the date for the deposition in the times by which the payments would need to be made and came back in and was placed those points on the record so let's take it one step further there was still the option to come back in after the court made its order to move for reconsideration if you're going to move for  reconsideration bring in the evidence that you didn't bring in before but would it have been considered i don't know i wasn't there but judge monday who has been on the bench for some thirty three years i know before i said right right around the time i started practicing is a very practical individual as most justices are they want to see what he done and that they also don't want to see people being taken advantage of and that's what we have in this case people being taken advantage of six times to prepare for depositions the costs are astronomical in order to do that we're all practicing lawyers or have been practicing lawyer is at one time and we know what it takes in order to get ready so i'd like to know if there's any other questions that the court has i'm happy to address  was asking for was eighty seven thousand and the court was originally at one number came to forty thousand and one and they wanted it paid all up front one time that wasn't going to happen the judge wasn't comfortable with just issuing a terminating sanction right then and there which is why she asked the parties to go outside have a conversation and discuss a payment schedule that would work so that by the time that they got to the deposition there there would be an incentive if you will for miss helper to show up because she had now spent the money and well if you can spend the money to come in and testify now but i don't really think that the record reflects that that was the intent it was easy enough to come into court later but that wasn't the that wasn't the modus operandi of this particular party it was just from the time in two thousand and i believe fifteen when the stay and the fifth amendment was terminated  sixteen months went by and never did she appear for deposition you know you look at this case from a certain angle it almost looks like she took a default or her default was taken because she failed to pay money in other words the terminating sanction was a sanction for the failure to pay the money and that just rings wrong to me if you have a response and i do because i don't think that that's why judge mind did what she did i think that by the time they got to the hearing on the order to show cause very sanctions and for the terminating sanctions the court made it pretty clear enough is enough there has been delay after delay after delay and i'm not going to continue to subject the plaintiffs in this case to more fees more costs more expenses more time more delay just to be coming back here again six months from now when the costs will probably have doubled because there will be an additional preparation additional motions that will have to have been filed additional judicial resources which will have been taken up now i don't think he wrote with all due respect your honor that it was an issue of just a failure to pay and that it will sanctions i think we have a history of a case that began in two thousand and eleven we had a stay of the proceedings that went on for years and by the way while there the briefs seems to imply that it was a motion that was granted by the court that stay proceedings was by way of stipulation there was continuous cooperation by the plaintiffs in this case to get past the statute of limitations argument or says we i'm sorry the fifth amendment argument and then start discovery when it was determined that that didn't exist any longer and then from that provided the opportunity to honor i think broad discretion is given to a judge to make a determination as to whether or not sanctions in the form of a terminating terminations of the case are or are not proper  i don't know i get it in looking at the way she wrote her tentative ruling it wasn't she was inclined to do that she might have been within her right because it's she has the discretion to do that and there's sufficient case authority that says that if there is such discovery abuse then the court yes is within its right in order to issue such an order that cited in my papers and she chose not to do that because there was an issue of practicality and there's also an issue of the desire to have the matter resolved i think in all fairness i think judge one wanted to see this case get heard on the merits well there's also a requirement to consider less drastic sanctions that is true too in that case should should the order have reversed the sequence of events and put the deposition first because that that's the violation is the non tending of the deposition and that was back loaded and there was discussion about that but it is that was an error because there's some case law out there that says that if you comply with the discovery violation the payment nonpayment sanctions later it is not terminating my crystal ball broke a long time ago and so it's hard for me to sit here and say yes i believe that if we would have put the deposition first it's that we're going to have it next week show up and with all of your documents and so forth and then that's fine and then you pay the sanction later that that would solve the problem i don't think it would have what i would have been the less drastic sanction on it it would not have addressed the issue that was raised by the order to show cause reckon temptin it would not have done anything to allow the court to have control over its processes and its procedures and the ability to manage its docket because had the debtor not shown up had the debtor come and refused to testify then the parties would have been right back it was no you could anyone think that's necessary because this is as drafted she showed that she was willing to give the drop dead she just reverse the order so anything was dropped dead so if you put the deposition first and there was no attendance upon finding a notice of not attendance it certainly seems that that would have gone you would have been right back here but you would have been terminated for the discovery violation rather than the payment sanction well but your honor i believe that the issue they go hand in hand and there was a an issue of compensation of some form for the plaintiff in the case and i understand what you're abuse that has a bit of an issue here the parties had stipulated a number of times before the ultimate deposition would had been scheduled in february after the sanctions were to have been  that the that ms helper was going to appear and she was going to be deposed and each time it was very clear that she had no intention of doing that i think that with the judge did was mandate the payment of sanctions in order to assure that she would appear for deposition because she had the ability to do that and she had the she was trying to force i believe her to appear and be deposed in a good faith response to the questions that would be interposed to her and not just show up and then come back to the court and say i appeared at the deposition and i answered questions but i didn't believe that i should have answered certain questions she had hired lawyer the last minute to take the position that certain aspects of the deposition should be limited because the fifth amendment privilege against self incrimination was probably going to come up again and so it seemed pretty clear that even if that appear and in good faith comply with the discovery requirement because suddenly she had a horse in the race and not just well i'm going to get a judgment against me she's going to get a judgment against her for nonappearance she gets a for not appearance but it's a matter of having counsel prepare again had already spent ninety thousand dollars and cost and i'm sure it's far more than that and there was just it seemed like there was no incentive to get her to appear and perform include faith and answer questions throughout for just in discovery because it was clear over the period of the sixteen months that preceded that that never happened it was just always another reason why and i think the reason why the less drastic sanction of setting the deposition and then paying the sanction some time later on in the future which could have resulted in them never being paid or being paid following an analysis of her assets and ability to pay may have taken months and months and months when that very issue could have been addressed before the hearing took place ordering to appear in the sanctions ordered she could have simply as i said earlier in this discussion come in and said i can afford it here's my declaration here's my bank statement here's my assets here's my liabilities this is what i can afford to do this is what i'm willing to do not just walk in and i don't believe she ever took the stand and say i can't afford it it's just not enough there would be no incentive and i think it detracts from the ability of the court to manage its calendar to manage its processes and to provide for the interests of the plaintiffs it which is the w the parties in this case who had been delayed and forced to incur the substantial fees and cos thank you thank you thank you again the big concern with this is the timing of how things were set up with the sanctions there was a continued deposition i believe set for january thirty first the contempt order was in or december one thousand she was to pay ten thousand dollars every two weeks which is placed on a very rigorous payment schedule she made one payment she did make the second payment the case was gone before she even had an opportunity to perhaps not show up for the deposition but the deposition was set but it's an issue i mean i think one of the issues the whole idea that if you if you set the deposition and you didn't have a substantial payment before the deposition you were right back where you've been before the attorney once again has prepared and he's even more out of pocket so was the timing not design good part to make sure that the sense of the past not repeated in the present there is an element of that and if she hadn't made any payments i think i'd be in a more even more tenuous position than i might be already but she did make a ten thousand dollars payment and she was attempting to from what i understand she was trying to cobble together the money but she didn't make the second payment and now unfortunately we're left with a record in a circumstance where it looks like if the person will pay ten thousand dollars every two weeks then they can proceed with their case and i do understand the sanctions i've had sanctions that were given granted in my favor and i've had difficulty getting them so i'm completely sympathetic to the circumstance with the court trying to make sure that people comply with its orders and getting irritated with people when they do not however in this particular circumstance if you look at the timing and then the terms it doesn't seem to it doesn't seem to flow very well i do understand the court's going to terminating sanctions and it's been my experience when they do they are very careful to make a very careful and clean record and have people respond and set additional hearings and do whatever they need to do to make sure that everything all the  dotted the t s are crossed and in this particular circumstance just looking at the timing of the sanctions and the payments and then the deposition being set and it never even having an opportunity to happen or they didn't call or in and say you know you missed a payment what's going on you know we're really frustrated with you we keep to telling you you got to comply we gave you an opportunity to comply what's happening again it wasn't four thousand dollars over two months it was ten thousand dollars every two weeks for an individual and i do understand her saying we have no evidence she couldn't make the payment but well actually didn't she give her a month between the third and fourth payment i thought the third pair was due jan twenty seventh and the fourth was after the discussion was pushed back that particular issue i'm looking at the record that i have and i'm looking at as far as when it was they filed their declaration which was prior to the deposition set in general thirty first and i think generally she didn't duplicate so that if the attorney prepared it was compensatory both of you know less in compensatory of past time cost in her opinion but it was also anticipat the lawyer wasn't deeper in the hole it's been my experience of all the bankruptcy judges i've ever heard before that they're always trying to be fair and they're trying to do the right thing i've never had i'm fortunate that i've never had a circumstance where i  in so i i'm very sympathetic to the position the court found itself in and trying to ensure compliance with someone who didn't have a very good history that being said with the circumstances i believe th attorney had done a motion to withdraw just before in this particular circumstance looking at the facts i do understand you're talking about somebody who had been really not made any friends  terminating sanctions and again they had set the deposition and then we had there's a payment schedule that was very onerous so unfortunate it appears to be almost a defect of terminating sanction one well the judge always has discretion in the sense that they could come in and say listen you know this person didn't comply and i want more information before i we enter a multimillion dollar judgment against them because i personally have litigated issues where i've lost and a case in los angeles with a certain judge who writes a bankruptcy evidence manual so it's never a good idea to do that appeal but we had gotten a default judgment