morning fred fenster appearing on behalf of celtic's plastics in the this appeal essentially raises two questions the first question is whether the district court's exclusion of the expert declaration of jim higgs that was submitted in opposition to shannon's motion for s tantamount to a dismissal and if so whether cal tex was afforded his due process rights the second issue is whether the district court erred by not finding a tribal issue of fact as the literal falsity of shannon's claims that it static shielding bags were designed to meet military specifications now i'm going to go to the second issue first and the reason i'm going to go to the second issue first is because there are some statements that were made in the advertising and they include that shannon manufactured the s s one of the three which is that static shielding bags to m i l p r f eight one seven zero five type specification i'm not going to repeat what i said before but it's the same problem here but the second thing that they stated is that it's products it's static shielding products are subjected to the m i l b eight one seven zero five test method so the court inquire before as to if they identified that they had done any kind of testing and it says here that that's what they did and of course that creates another issue and that is if you take a look at what it is that they produced in terms of the test the testing that they did that showed that that testing did not meet didn't even address a number of the categories or identify that had to be met that were set forth by the government in terms of its website to talk about what you have to do the qualifications you have to achieve in order for you to become qualified or even submit what is your estimate to the government for qualification by the navy so the couple of points that i think are kind of very germane to this issue is that this record concluded and i quote specifically because it has imperative value the district court concluded that quote without the higgs declaration which has been excluded plaintiff failed to prove sufficient evidence showing that shannon's product testing claims are not sufficiently reliable to permit one to conclude with reasonable certainty that they established the claim now that's one heck of a standard to be articulated on a motion for summary judgment where the only standard is whether there is a factual issue that is of a materially disputed item so this court came to a conclusion that not only wiped out everything that keltec was attempting to establish but it also used the wrong standard in terms of whether or not summary judgment was appropriate and so for those two reasons it seems that there should be reversal in addition to that there were tribal issues of fact taking apart or disregarding the higgs declarations one is the one that i mention is that shannon claimed in its own testing shielding products were subject to m y o b a one seven zero five test method but it didn't pan out because they didn't approach a lot of the factors that were required in order to meet that standard and then submit it also and in that there are nineteen performance requirements that must be satisfied before a product can be designated in myopia type three and the test results produced by shannon which they introduced into evidence show that none of its products were subjected to a majority of those tests and one instance it was only subjected to one test counts if i could jump in i think the thing i'm concerned is the wrong word we just have the most questions about this case is what happened with his declaration the procedural the shannon argued that was what the stakes declaration do and here it wasn't in the twenty six a disclosure and by the way looks like he looked at something that shouldn't have looked at so it's kind of freeze freeze it right there at that point and looking at the i did not see that there is a case called our in our sales which is a very good case for your for your side in this in this thing but i did not see that case ever cited to the district court the requirements that are in our sales would are caseless areas confusing but seems to him and impose upon a district court was that ever raised the district court when the higgs declaration issue will rose did you ever say the district just report before you can strike this thing you have to do all these things that they are now sells case lays out you haven't done that the answer is advance notice there was none what the court did after the reply brief was submitted was it took the hearing off calendar and then made its own determination so we were never given an opportunity that's all i ask you about because i know under local rule seven dash ten and you cited in your papers that you can't just files a reply right but did you ever seek leave to file a surprise because the court never know we did not and the reason we did not is because the court basically took away from us to do all of these things when you when you filed the opposition to summary judgment at that point why didn't you say i'm trying to understand what happened here say look we know this wasn't twenty six a disclosure our mistake we have a legitimate reason why and you can't take bad action against us on our sales was that ever done no for the reasons that i stated we just decided strategically that the appropriate part the appropriate approach at that point since there's no new law and there's no really good reason for reconsideration and i'm not sure that the court would have done anything we decided that we had a better shot in terms of appealing the motion for summary judgment was granted correct and the only other thing that i would say is that there were certain sanctions that could have been imposed that were lesser sanctions and the court decided not to even consider any of those or give the parties an opportunity first of all mr hicks was well known to the other side they even identified him as a trial witness and number two in terms of what we're looking at the fact that mr higgs did not sign a non disclosure agreement does not change the fact that the evidence that we are relying upon to create that factual issue is evidence it came directly from the defendant i mean i suppose what the defendant is arguing if is this had he signed that nondisclosure agreement that somehow or other that evidence never would have come into trial that evidence was a key to the trial whether it was going to be protected by the protective order or not it was still evidence that was going to come in to support the defense position so we use that evidence for the obvious purpose of showing that there was no way that they met the standard because they didn't even apply most of the one nine hundred factors that were required in order to achieve that objective and that's a lesser any other questions one of us every time yes or a question guess why doesn't the higgs decoration create a material dispute of fact because the higgs decoration is filed in response to the declaration of shannon's president mr walsh and in his declaration he specifically testifies to the actual casting that shannon did shannon on their spec sheet quoted from that has the language of design to meet it gives these different criteria as characteristics of the bags from different standards there is one mil spec standard listed on the spec sheet and it's the e m i standard and what mr walsh said in his declaration was that that's the testing that they did the testing that was referenced on their spec sheet that they have a testing facility at their warehouse or or or place of business and they test every every so new supply of film that comes in from their supplier before they make the film into the bags they test it in their own in house facility if it fails the test or there's an issue they ship it to an outside third party independent testing agency to test the product so that's that was the evidence about the nature and scope of the shannon packaging testing the hicks declaration talks about does not challenge mr walsh's testimony about that's what shannon did what the h does i mean what the higgs decoration does is raise a whole bunch of red herrings and that's these other eighteen nineteen elements of the of the eight one seven zero five spec and mr higgs is going i looked at this and they didn't test they didn't test any of that motion for summary judgment that was you say you didn't contradict anything i guess the court could have that i mean we made the argument that that was harmless you know that you should have been out anyway i don't know i mean judge l w you know he's the one who wrote the opinion i mean he could've he could have gone that that way we made the argument and in the motion i replied that it wouldn't really matter because he didn't create a tribal issue but i think i think the question though is that i appreciate your argument i would have made the same are going to fire you that's not what he said and he could have easily said look there's no issue in this case at all he exactly aeration or not and by the way the ex aeration was totally messed up so i'm striking it but it didn't even it was then no difference here i don't think we can read the order that way in fact to get some language in the order that can be read to say i think i said without the higgs declaration there is no travel issue so if that's our reading of the thing don't we i'm not asking you concede anything but they exactly aeration if if we find out it was properly struck then you're saying you prevail correct and that's where higgs declaration and from your perspective is that the first time you ever heard that higgs was going to be a witness for caltex in this litigation  april seventh the first time that we learned of eggs and so what so you could have still conducted a deposition if you needed it well at that point in time fact an expert discovery was close no so what it right yes we i guess theoretically we could in fact we would have said do it right now in our preside and then you would have finished in about two hours like that that that's not the full answer to get to the question your honor because with that it could have been done while the summary judgment motion was pending i mean it's a big deal well i guess the big deal is we made an objection to the declaration and you're suggesting that what we should have done was go off and no notice  addressed that in his order not only would we have had to conduct discovery of mr higgs with risp with regards to the technical technical aspects of his declaration depending on the outcome of that deposition or other discovery most likely then and a judge would have noted it in his order we would have then had to hire our own expert and prepare our own rebuttal expert report and with all of that squeezed in with the june sixteenth trial date  counsel suggest that he then made a tactical litigation decision not to seek any relief when with respect to this and i realize that you know i think without it specifically addressing our sales i believe in the order judge lou really did go through the elements that you would need to that you have to make a finding on and he may not have specifically labeled them but i think he went through those the key here is that once cal switched on notice that there's not going to be an a hearing on this so if that's where they plan to argue against the objections your honor is the point that they could have sought leave the file a server apply or requested a hearing just on that one issue not not to further argue the motion itself but just if they're gone oh my god they're objecting and they're asking if this be excluded you know we need to be able to be heard on this before the judge rules once that hearing was taken off calendar on april set for a hearing on april twenty eighth i believe the friday before the twenty fourth if that would be the friday or maybe the thursday judge lewis issued a minute order taking the matter off calendar and basically the motions submitted on the papers it was going to hold  argument so at that point they knew that if if they had concerns and or felt they needed the right to respond to our objections to the higgs declaration and the request that it be stricken they could have taken some action and they made you know he could have just signed the exhibit a to the protective order and all the problems would have been been been resolved this wouldn't really be an issue except that it ignores the fact that cal tex lawyers showed mr higgs exhibits that had the mark turned his eyes only confidentiality level under the protective order and under the terms of the protective order employees of the parties were not entitled to see the other preside attorney's eyes only material mr higgs is there he said i would have in spite of it was part of the record it would have to come out it would have come out through up properly designated expert witness not a not a last minute sandbag expert witness who who wasn't even authorized to see the materials he was testifying about in his declaration can i ask you one question i just want to be a minute be clear in my mind when your adversary said it was a strategic decision was he referring was that was after the minute order taken off calendar that they made a decision not to seek any relief they figured this was a as he said i believe it's a directly appealable issue if the judge takes it out we'll take it right up to to this court  case just a few weeks before trial but it was a separate question from whether alternative sanctions were available short of exclusion i think the only type of alternative that the extra extra course of the position there are there are other kinds of sanctions that can be imposed i mean granting granting summary judgment is the ultimate sanction actually honor but again i think here you have to look at the overall posture of the case where it was time wise and there really wasn't one that because if you do what lesser one then in essence what that ruling would end up holding is that a litigant can engage in the type of conduct that cal texted you can basically you miss all the deadlines on the rule twenty six in terms of identifying witnesses experts  etc you can respond to a document request asking you to produce all your expert reports you can object that that's privileged and not produce expert reports so basically stonewall it and you roll the dice and take in go up to show up at trial with this surprise expert witness who was never properly identified you didn't have a proper report submitted and throw it in there and if the court if the other side objects in the court agrees and strikes it because it was improper that's ok because you're going to get another way to another bite at the apple you will fix it a different way but there's got to be a point there that there are some consequence of one of your going out giving a hypothetical  at's not this case there was no trial there was it was an appreciate it was in a pretrial phrase you was trying to avoid a trial that's right we were very not when you was there were there were alternatives the only i was i see in this case the only alternative would have been for the judge to basically vacate the trial date and provide time but at this point at that point in the procedure that wasn't for us to ask i think shannon properly took the procedure it did we were given a surprise declaration by somebody who wasn't who had been to benefit but the declaration showed that they had breached the protective order so i've got two arms going on here i've got they didn't one into two well it has order the judge lou actually you know excluded it on two different grounds for failing to comply with a rule twenty six and for the breach of protective order under thirty seven  counsel says that there was prejudice to shannon there was no prejudice to shannon because the very documents which establish the literal falsity of the claim came from shannon w shannon voluntarily produced in response to discovery requests the messenger may not have been the right messenger but the facts and the information were not invented by the expert they were invented and created and provided by shannon that's the first point can you clarify for me when did you make the strategic decision was it after the before or after the men an order was entered or or after the judge ruled after the judge  we had no idea what the judge was going to do with respect in his rights or that's why i asked you to sort of know he had no idea and tell me what was the street what was the strategy and did you think it was a waste of time to to go back to the judge well i can't say what my client thought i don't think the answer is yes we thought it was a waste of time and since on appeal the test is trying to do no if we thought that that would be we get a more fair hearing because i guess what i don't understand is that when they file a motion saying you should you should dismiss this declaration and effectively which would dismiss the case you don't file seek livan thing with a lawsuit in your honor there are some alternatives here before you go down that road we can we can we can extend the discovery time we can do this we can do that two things number one there was a suggestion in the reply brief by shannon as to a lesser sanction which would be to permit the deposition to be taken and the court disregarded that the second thing is they always knew who his was because they identified him as a witness on their side for trial but i'm saying as to your side especially when they're offering the out will take an alternative is something short of dismiss i still don't understand why we're talking about tactical decisions why he wouldn't say yeah good idea don't dismiss the case do what they just said because we think because we look at the cases and the cases talk about sanctions not the ultimate sanction but sanctions that would have been available which would not have compromised her position none of those cases were put before the district court that's correct because we decided that it was going to be fruitless so that was before then now tactical decision that's the time frame i'm talking about i'm talking about when they said no we made that decision after the judge issued his order ok but i'm going back to the time period again they filed a brief saying strike it and get rid of everything i'm trying to understand why at that time the district court was not afforded the opportunity to really consider the alternative options here because a local rule said you can't put any but supervisor you've been practicing this under his for a long time you know you can see reply they didn't happen here sometimes on our stand there's that time here there's that several week time period more than a month to give the district court the opportunity to consider these lesser thanks instead of us doing it now giving him the opportunity to do it i'm just trying to figure out why that was never done because of the reason that i mentioned i can't change the reason the reason is because when he when judge lou rendered his decision talking before he went on talk of the time period they filed the thing saying get rid of the whole case five weeks or six weeks pass until the judge makes a decision during that time period why wasn't judge lou given the opportunity to consider the cases that you say are important for us to consider that time period why wasn't he given the chance to do that in the first instance rather than asking us now to do it to him the only answer to that is because we wanted to wait and see what the judge did we had no idea what the judge was going to do you know we're asking to dismiss the case i mean the firing squad is coming don't you want to say hey look before the firing squad just give me give me some time in the hot box i mean you know you have to say well we'll see if the pharmacy i shoot us i mean don't you want to at least do something before then i'm just i'm just trying to understand why well why this happened let me say it this way here's the way we evaluate it if we leave to a man and not leave to a member should certainly to permit the other side to take his deposition and the court said ok that would have been ok if the court said no we would have had an issue want to appeal they might have said well we want to wait until we see what's going to happen that's something that the judge has to make it through and if so was the tactical decision made before the judge's order basically yes ok well because before you say the tackle says it was made after the judge's order it really was one before well it's the did situation with respect to the appeal and what we were going to get out of it that was discussed after the time i'm talking you know the you know the time period i'm talking about here time period that you're talking about when we saw that request we looked at the cases and figured that there was no way under the case law that the judge was going to do what he did and we didn't know until he did it that he was going to not consider any lesser sanctions now i have a better understanding what