improper and prejudicial remarks during summation submit there's a court erred on both of those scores as far as the ab abs after emails are concerned they were produced after discovery however it were produced before his deposition and he was questioned on in addition to that there were eight total positions occurred after discovering cut off the district district court for remedy to this was to allow witnesses to testify and a very limited fashion as to the actions sandusky but not let the testify with respect to any of the details in those emails the dispute between my clients and this came up with these numbers that varied from sixty million dollars royalties which trial were determined to be five and in that trial found not to be independent auditors that led to that suit so with respect to the after emails they were incredibly detailed they had a finalized readline contract and the judge just completely excluded them so the with this is who could testify about them in reality or unable to do so and we submit under our in our sales that's the court should have found less severe penalty because there was no willfulness there was no bad faith there was no fraud the emails were produced that would have been no point in calling someone from sandusky who also could not testify about the e mails that she had exclude it would have been the same  itself the jury found that all of the elements were met with the exception of causation of damages those twelve e mails and that red line go to causation jury found that they made false representations to p n why the jury found that noah kaplan knew the district court's not following our in our sales and not applying it less severe sanction particularly in light of the fact that the chief witness on these e mails was the  but his testimony was extraordinarily limited and there's a lot of verbiage in the transcript and on the record about this but his testimony was completely lie up any like you know and i hate to use the word lie and i'm not going to use it here but that's what she said and if you look at the quotes from the summation they don't simply apply  who submit we couldn't have called anyway because they would not be able to speak about the e mails but one point drawn even more attention to what counsel said about this she did at one point sustain my objection earlier on and tell the jury to disregard and that was the offer again to say disregard this statement so when we presume that juries follow their instructions so why shouldn't it bear on our thinking that the judge was willing to tell the jury to ignore these trying i'm over one hundred and fifty cases this is the only time i've ever anything to do damage is lost profits those statements are not true and he knew the documents existed because he conducted the hold up a session on them so i suggest to the court and wise repeated violations of rule twenty six of its discovery obligations and the orders of judge chaz and i want to try to highlight just a few things that are in the record but i don't believe were highlighted  completely in the breeze so we know that there was no disclosure of these e mails in the rule twenty six disclosures we know there was no disclosure of these e mails in response to written discovery requests for production we know that in may of two thousand and sixteen that was the date in a scheduling order discovery was cut off by judge chesney those e mails had not been produced in july of two thousand and sixteen i took the deposition of the person piano white designated as most knowledgeable regarding their damages and requested with that was a request for production of documents concerning that the e mails were not produce in october of twenty thousand one hundred and sixty two weeks before trial because of this late disclosure i did depose mr app for and beyond the fact that mr app for testified that he knew virtually nothing about these discussions i hope i'll have time to discuss that a little bit later what he testified to was in fact there were other documents and e mails that existed with respect to these discussions and these e mails that were only disclosed two months before trial you said two weeks earlier which is my colleague who took the deposition pointed that out to counsel requests that they be provided they were never provided now also at that july two thousand and sixteen deposition of the person most knowledgeable regarding piano wise damages i asked him what are the damages what's the computation of damages and he couldn't answer and in fact in the opening brief b m y says that page fourteen who hadn't disclosed the computations earlier made three supplements of the rule twenty six disclosures in this case p n y i never supplemented their rule twenty six disclosures concerning the emails or anything else and in addition this claim that is being discussed here the that relates to the app for emails according to the theory that p n y is now articulating is that these emails evidence to so called are discussions about a sales relationship with santas and that miller kaplan saw to cause santas to cut off those discussions and according to their repeated comments in the brief this affected the judge and among the evidence that she let in despite the fact they had violated rule twenty six with respect to the computation of damages was their expert's opinion that there were some thirteen million dollars of damages caused by miller kaplan and i just want to read real quickly part of the record here because i think it's important that we focus on the record not statements that aren't supported by the record this is that further excerpts of record pages thirty three and forty two and this is mr lane's examination of their expert keeping in mind they're saying that these e mails amounted to an effective dismissal of their last profit claim mr lane's question and turning to your opinion on lost profits can you explain what the conclusion was that you reached and how you reached that answer this is mr gallus the expert yes like i said earlier my last profit calculation is based upon is based on the last value of a relationship with sandusky starting it would have been continuing that dialogue that was in the middle of two thousand and eleven that got shut down after the issuance of the miller kaplan report then we go to another question by mr lane question and what was your final last profit damage numbers answer for those two pieces like i said it's thirteen million dollars as shown on my schedule one runners we submit that should be so lucky to have their damage claims effectively dismissed in this fashion when the jury was allowed to hear testimony of thirteen million dollars of damages that he was contented my client caused and i would also know for the record that contrary to comments in the briefs and that we just heard mr abt for and m both testified that there were in fact that the two this cut off meaning that the relationship or the discussions regarding the late relationship work cut off as a result of miller kaplan so there and that was in the e mails by the way there was an e mail that they wanted to submit  allowed this information this evidence to be before the court now also and i have great respect for mr lane as well but i do believe the record here is very important and statements have been made in these proceedings by p and y that are not supported by the record and aren't correct one of them i just talked about but i want to mention just three others number one in their opening brief the appellant's brief of pages three and five the statement is made that the only available documentary evidence of this supposed relationship where these e mails it's further stated that pages two hundred and seventy three thousand and thirty seven that the only documentary evidence to support the claim of lost profits were these e mails that is proven false by the record number one app for testified at supplemental extra for the record one hundred and ninety two thousand one hundred and three there were other documents and e mails out there those were never produced number two san disk san disk was the suppose that other parties to these discussions there were no santa stock humans no standards witnesses that were ever introduced by p n y but they were certainly available had this new claim and the emails been disclosed in a timely manner additionally mr chagall is their expert he got up the on the stand and he was allowed to show the jury i think it was six different schedules supporting the last prophet damage claims mr c on  that was introduced to support the damage claim and judge szczesny over my objection allowed that test that evidence to come in and i would also just note and it's in the brief so i'm not go beat this one but if you look at page twenty nine of our brief footnote six there are twelve different instances twelve instances separate and apart from the e mails in which p n y violated their rule twenty six and discovery obligations and that goes to attorney invoices we didn't get to until trial that goes to an attorney who was called that was never on the witness list that goes to rd party vendor invoices that goes to a market share claim that goes to what would have been the prejudice given what you just said about all the other evidence that was available what would have been the prejudice to your client had  court allowed the e mails to be introduced well your honor those e mails raised a whole plethora of other issues and evidence and had they been disclosure of this claim or the e mails at the time i did that so we couldn't disclose we would have had to read a post to joe read dispose oppose war and stone on the sand decide to people to those e mails there was a mr wong and a mr tall by the time of this disclosure about two and a half years into this litigation we couldn't even find mr tall and that's that excerpts of record to thirty seven other witnesses that allegedly go to these discussions sanjay moe truck he was the c e o of santas that mr cohen testified well i had discussions with him about these this this sales relationship we didn't have a chance at oppose him additionally in mr after step is issue and he testified well i was told that this  decision to put the discussions on hold was made by executives at santas well we those executives were never identified and mr app for didn't know who they were additionally mr out for testified that p n y attorneys were involved well we didn't know who and he said i don't know who the attorneys are so we had to conduct discovery to identify the attorneys and then  pose them about these supposed that discussions the other thing i just want to point out about ms student all the witnesses i've just testified i just mention santas i mean p and y made a decision not to call them ok on behalf of p n y i took the position that the draft contract was really terms and conditions the council just mentioned was totally unacceptable it was one sided and gay p s y no deposed early on in fact by subpoena by p n why never once was he asked about these discussions and we weren't told about these discussions these e mails till a year later and what was his testimony says his testimony was san disk refused to do business with piano why because of their multiple breaches because of their bad faith because of their in his words lies and because they didn't trust them so it makes perfect sense that p n y would not call studio even though and by the way that i believe it's that says something little extra for a record page fifty six judge me in response to a question for mr lane said you can call any witness you want you just can't get into the emails so they called cohen and cohen testified to you know discussions about this agreement he testified to negotiations course he said he wasn't involved in the negotiations so a lot of evidence came in and to suggest that they couldn't call studio your honest question is an appropriate one there is no prejudice but he just restated here the same thing he told the jury no sand of documents and no witnesses were produced and of course mr to kill us who was the expert and gave a number but he couldn't give the back up or the number because that or the mouse and the red line and mr  testified at the supposition that the deal was going forward but there were two different houses within sandusky the business side of santas which we were partners with and looking to you know shape this agreement an and they created the deal with miller kaplan's help coming up with a fraudulent audit that was shown of the st trial and it was shown here and the jury agreed with us both times that miller kaplan was non independent that fraud occurred mr gillis cannot rely upon the e mails or or the red line mr african do it soko and couldn't do it and there was no prejudice to them and they haven't identified a single bit of prejudice there could have been a with her she said there were no contract drafts the contract so far apart that's polite by the e mails as far as the summary exhibits that he said mr siana was allowed to use had never seen before the summary demonstratives financials that were longer produced in the case that he had and he knew that and that's why years and the accountants in question here did more than sixty percent of his work sammis as far as the other discoveries concerned he talks about