mention in the brief that during the closing arguments the opposing counsel got up and testified that well he stated that these employees earned over one hundred thousand jury heard that charge in the following it's hard to allege that a statement in closing argument led them to make a rule despite all the evidence they h what's poppy cost that they had failed to specify what the cost what the copies were for and the court stated that ads present she could not issue those costs to both specific to electronic data as well as in general that prohibit a court no matter how angry or frustrated the court may be with the parties from using sanctions to punish as opposed  years prior but did nothing to press in that interim it was assumed that that data had been spotted that triggered at a hearing about four days later on october  two thousand and seventeen an extended discussion with accord with respect to whether or not the data in fact had been spotty and it serves as the principal predicate for the court's imposition of initially an adverse inf no basis in the record for that finding no reasonable inference and what speaks conclusively to our admissions that the edwards appellant made on the record i just made reference to one that at the in that document articulated with respect to that quote most if not all of the documents are all there trying documents it would require little effort or expense to produce here again you don't but rather objected and claimed that the gathering of such data would be over burdensome that's precisely what we do because again whether or not we're right or wrong we have a right to perceive that to be a representation of the not existence quite clearly they did not if four days before trial in which they claimed the data was essential they are telling the court we did not represent that the data did not  although this court and several members of this parent respect for the have either written on the fact that the utility of a sanction in particular rule thirty seven dollars is limited to compensation not as this court in no uncertain terms say it to progress into an analysis of what the appropriate sanction will be but even in that progression the court is limited to quote no brainer that necessary measures with respect to the nature of the sanctions we taken by the court at that point because any further measures go beyond returning everyone to the status quo which was to ensure that they headed out for trial the only utility of any further measures as a court made clear in  mentioned it's more so grounded in a due process principles and the notion that if you're going to punish someone that has a quasi i term an open undertaking which cannot be done in a civil context in the way that the court  instruction but not it was not given that's correct and so the very unique dynamic of us overcoming a sanction that was inherently punitive only to then be tax approx one hundred thousand dollars in attorney's fees the way the issues were submitted to the jury all the legal issues with respect to is the jury didn't heard testimony evidence documentary evidence and was allowed to assess the credibility of witnesses and reaching its findings it is too late for them to show up and say things like we don't necessarily feel as if the jury was officially sensitize to have a firm to burden to prove regarding whether charge you don't identify in your statement of issues to this court you don't brief to this court and you don't argue to this court why there was an issue with the jury charge on those issues but then expect release by surreptitiously attempting to appellant put forth a single witness not just a name plaintive but a single witness who can say unequivocally i expected to get the state's bonus or the performance bonus i took it on faith that that was when subjected to cross examination could not string together a coherent narrative with respect to the purportedly non discretionary nature of the bonuses as we have briefed our respective think that it was a with this jury other issues that would have been of concern to me as there is no document that evil memorializes the stage but there is a document the memorialized before me as bonus but that says unknown certain terms don't expect this that a document also includes all manner of factors therefore j l j was entirely to consider when analyzed the issue subjective consideration such as grant a withhold a bonus for me to pinpoint whether or not he thinks i'm hearing to sufficiently high standards of cleanliness or my attitude is poor i may be grateful if i get the bonus but i'm certainly not going to take for granted that i'm entitle to that but those are precisely the promise of considerations that the jury here was entitled to weigh that the jury here did away and in wayne those issues resolved this case in favor of for j overwhelming evidence from plaintiff's witnesses from ms rebeck apart from john's aloft go all over home address the core of economic reality criteria and say it none of those what night failed to mention to this court is their response was they are just their objectionable requests but we have any anyone any way we wouldn't have anything anyway and based on s records there's no way i could have known that there were over thirty thousand tape of these documents at that time that you actually still have the service they were still paying for the when these documents were finally produced just a couple of months before trial and trial was forty years after this these documents were once these documents were produced they discretion in order to be a discretionary bonus one of which is that it cannot be based on a prior agreement there is no mention of discretion in there it's just cannot be based on here we have a contract that's given