district court abused its discretion in sanctioning defendants kirkpatrick and rosette those defendants cooperated in good faith to schedule their depositions and their depositions went forward on october th and two hundred and two thousand and seventeen other parties experience were a lot of scheduling difficulties but nothing out of the ordinary in invocation i would think a lot of the scheduling difficulties happened in july two thousand and seventeen when the parties were trying to fit in six or seven defendants depositions over the course of it's an abuse of discretion for a judge to conclude under those circumstances that the court had not intervened that these cancellations would d have continued it was a long history of cancellations and issues i don't i don't agree with you that this is like the normal but that was not in the email where was cancelled they just said he needs to cancel it there is no reference because his wife is ill there was just this has to be cancelled reference to the wife thing it was many weeks earlier he had made that reference many weeks earlier d in the summer recognized that one of his cancellations was justified and advance of the september nd nd deposition the court recognized that the inflation was due to unforseen and that the circumstances and the court never questioned the earlier cancellation on find that the trial judge do you his discretion this court and will send the citi group make clear that sanctions against parties orders ording sanction must be clear they must state their  made agree to that october th date under the condition that kind of counsel would agree to cooperate with them if they needed to be reschedule and to no one's surprise yet over if they did become problematic because of his wife's illness rosette told his counsel about that a month before the deposition embrace and then he offered an additional date over eleven that being the earliest date he could appear and eventually he did a if i may this is this is a response to that e mail on and on the same day and it's actually on the docket e c f eighty one dash eighteen it was a part of my original motion for sanctions i just want to read one very short paragraph denise is the who is involved in the trial look denise i mean if you can being it is not my intention to make things difficult for people when they are dealing with difficult situations in their personal lives but to tell me he's quote out of town unquote and he th can do the th then cancel him then wait two weeks to confirm a date which makes no sense for me for next week then tell me that he can't be available one single day for two months is a little absurd it goes on that i had made myself available for thirty four weeks in the month of july and conduct these depositions and we couldn't get  with the failure to appear unless of course they can prove to the district court that it was substantially justified it is clear that the judge magistrate judge peoples knew this case  puts the burden of proof on the party who failed to appear because the party who's taking a deposition is never in a position to know whether the the reasons for not appearing that are being given are true very well but you know there's a there's a but there's also a larger on text to this and that was the end which was before the court before this court and was before the magistrate was the repeated last minute changes the scheduling into account in determining that but for that but for the judge intervening this background of it would we still drilling in the actually schedule it in the prison doesn't show up but has a substantial believe he was and i believe that was the basis of his finding and it's and i want to just say judge that it's not a fine it's frankly just making the plaintiff whole and then i was using it as it were going i understand i understand that yeah but but there is a difference and i think that you know i think there's a substantial there's a real difference because if this was a oh i mean perhaps there were to should be a higher standard to me in charge of obtaining those kinds of sanctions but that's not what many isn't part of the state one difficulty you know both sides were pretty difficult about finding a time when they could meet you are we st of all there the plaintiffs made himself available for which is this is also on the record be deposed before any of the defendants and that was their prerogative and they in fact went to court got a court order for that so we had to wait they served interrupted stories on the plaintiff in may and then that was when i could start with the defendants and i gave them the three weeks in june after the originally scheduled june th plaintiff's deposition but that wound up getting postponed because they  in connection with a photo array in which the they change the rules the last minute before i left the great meadows correctional facility so that so that got postponed again i believe based on know i think that's that's the backdrop to to why all of these were supposed to be happening in july they could have happened in the spring thank you i apologize the record is clear that both defense both kirkpatrick interset did cooperate to schedule their deposition and may two thousand and seventeen when plaintiff st served notice as a deposition on defendant's recess that he was back and summer twenty seven which is the same reason that became unavailable on october th and defended counsel reminded plaintiff counsel of this on october nd this is all in the record the magistrate and the district court of use their discretion in