no new documentary evidence for any of its copy costs and the district judge sense of even the right to distributed then said that rico filled the bill well the district judge found that synopsis had failed to meet its burden of proof with regard to the volume of documents that were produced what the did and we had produced evidence pointing out the in effect the errors in that in the phenomenas declarations what the district court failed to appreciate was fat virtually all of those documents have been produced electronically and what synopsis and abandoning its prior approach a lot of documents were produced electronically the question is whether the documents that are the subject of dispute here were produced electronically or were produced to maryland and  issue the marilyn agreement were related to the electronic production of documents and wait wait wait my understanding is that what happened or a large number of documents that were in a hard co correct your correct for one hundred thirty eight thousand pages of five point five million documents but what's the basis for that the synopsis documentation that they produced in the first production identified by bates invoices that i believe the remora invoices to not that they were identified as having the materials produced to merril were native production yes but those dates the prior identification of dates numbers that were in hard copy as reflected in the except it be to the mccandless declaration and then the new documents that e the stipulation we cite to contemporaneous e mail to that and we cite dozens of merrill invoices reflecting that so everything produced after that date so the issue here is what the district court did was to take five point five million bates numbers of which under the evidence we have seen we can identify happened i don't understand how this could possibly i mean either five million copies of documents were made or they weren't you might argue well it should be for the hat million or five million but i mean the vast quantity of documents why wis that rice that that's correct but that did not happen in this case there were five point five nonsense identified five point five million pages of which virtually all were produced electronically and s will not stand here after i sit down and tell you the five point five million hard copies documents were produced to rico because they were not the marrow they well the documentation first of all there's no evidence to support that the documentation that we do have from the invoices reflects native documents they were like both electronic documents and they reflect photocopies being collected the case law however s panel ruled in the first appeal that what is only taxable is the cost as produced to the other party and the cost as produced to rico were pursuant to the maryland remit which were shared fifty fifty if synopsis chose to make interim heard of really in our comp documents produced america i i don't know that there's no evidence to support it i was not involved in that production and there's no there's been no evidence to my knowledge in the record to reflect that so but even if they were as the kmart says those interim copies because synopses could have taken the originals and have those and have it whether you copy or whether you image it is the same process it's putting it on a machine the last and it's needed either an image or our copy for its convenience apparently to the extent there were hard copies or a hard copy originals synopses chose to make another car copy of them instead of electronically imaging but whatever it chose to do in those interim steps is not taxable because what is taxable is only the cost of the documents as produced three cup and here they were produced electronically under the merrill agreement and what the district court did is as far as we can tell unprecedented by taking electronic production five point five million electronic pages and applying a hard photocopy cost to that this court has never count production is the way documents are produced today under nineteen twenty and the guidelines under one hundred twenty in fact as the supreme court indicated in the detective gucci decision which i know relates to interprete costs but has a paragraph on page twelve and thirteen of the opinion in which it says that all costs under one hundred twenty are they're relatively minor they are limited by statute they are modest in scope and it advised against trying to stretch the scope of one hundred twenty which is consistent with crawford fittings decision of this from court nine hundred eighty seven so here what we have to do is look at what is within the scope of  twenty and as this panel rule after the first appeal there needs to be the requirement that i have on me just reference it prevailing party must establish in connection with this post below cost one reproduced documents were produced pursuant rule twenty six or other discovery rules too that they were copied at the prevailing parties expense and a request  apply a photocopy charge and call it a day no new evidence that is and the way that it's not just presented to the district court was that this is a wholly alternative  suppose that you have documents which are very old documents and paper form and the only way to convert and ultimately produce those documents in a more convenient electronic form is to make copies of them in the first instance and then that copying process will allow you to make electronic copies you're not contesting are you that the cost of producing those documents may not include the initial convenient for you you don't end up with truckloads of paper doctrines open the only way they can do that to satisfy your requests for electronic copies by my hypothesis is to initially make not for their own convenience but for the convenience of the of the vendor or that is making electronic ups the only way to do it is to make it just physically copy each document first you say that none of those costs second the agreement the marilyn grey matter where the cost of splitting for the cost of production precludes the taxation cost in your example under the rules and in the old days well when i grow originals could be offered for production and then the receiving party could elect what to do with it at a town expense or make an agreement otherwise so those originals in your hypothetical no copies need to be made unless the receiving party chooses to request those copies now i under your hypothetical if the producing party elect to not make the originals available for production that is its choice the and it can make those photocopies now i think the smart thing to do is to clear about what happened i side streets to be frustrating in the inability to be clear about what happened as to which i think there's little rival is not tendered to wake up attended to that's correct your honor i think that the copies were tender to merrill because as part of the process the parties did agree to o c r the documents and that was just right and pointed out an extreme convenience for rico but they were able to t i did want to make a couple points about that agreement rico could have raised that agreement the first appeal or below in the first appeal did not we believe that rico did not contest the enti were necessary to tender the documents rico and yes your honor we did tender the documents electronically there were some documents were tendered physically because those were documents by the nature could not even stand in for example if you've been attended to merit and the question is whether that's the same it's entering them your honor when i say that it's important that that mr scribe what happened i understand you're saying i'm not trying to mis describe it what i'm saying is when a page documents and they all happened to be fortunately on an electronic form or it's been preserved already in electronic form and so what you do is you produce a cd that charge eight cents a page that i would agree with that your honor and that's not what the evidence shows here in this case here why why is eight cents a page what is it that makes eight cents a page reasonable in this case or the five million seven i don't know how we could have provided evidence for every single page and i mean i would have to say well with respect to page one million five hundred seventy six i saw that that was copied but what you're saying is you that was your why couldn't the white and the original copies of been produced and scanned in electronically so there was no interim part so that would have required each of these eight defendants to take their original ship them somewhere so that then merrill could have taken them one page of the time and scan them in that would have been an extremely inefficient process or on or the other really don't understand the one page that time had to do it one page at a time whether they're doing it from a copy of synopsis had an obligation through them to make sure they were relevant and responsive to because their class there was evidence of mr moore's declaration in the same page that there are actually many more documents that were copied the synopsis reviewed and do not produce but what when you go from let's say a file drawer full of hard copy documents to scanning i take it that that still has to be done on a one off basis that somebody has to files didn't want to pull out the stuff that is going to be produced from those files give it to merrill of the scan it in because that would destroy the integrity of the original files or would be a pain in the neck to take those documents back once narrowed scanned them and reintegrate them would have a lot of force but the that's not the situation here we would be if we adopted your position we would be approving the entry of a judgment which is spatially in  a little better record i think but on the issue you know the written translation cost issue i understand we're owners coming from but the only reason why it's in the judgment of part remanded because reka raised it with the district court said was no that's not within the scope of the mandate you can't raise and so in essence it's not part of the new judgements part of the original judgment that hasn't been affected yet because it supports say that pending full resolution of all issues by the court and so i the circuit hell that an intervening change of law that fundamentally changes the basis of the judgment even though the supreme court decided that there was nineteen days after a judgment that was  more angles against isaacson which that's exactly what the supreme court said and read again for us which is exactly what the supreme court said so if you've read those cases and you think you can distinguish them then tell me but otherwise that i think is a fair statement but the principle law that two cases i'm talking about and what they said was no in cases in which there's a wall of contrarious argue against you and impermeable barrier but if for example there's a split in the circuits are there some reason to think that the supreme court might change the law of the circuit then the rule may be different and that seems to me to be your situation when you were faced with the question of whether to raise the  in almost certainly would not have ruled in your favor at that juncture but hey you could have petitioned for search your r e b you could have if you got a ring that as you did having preserved it the first time around you would be entitled to raise it again but you didn't that's the problem well we get raised on remarriage after we thought that there was a basis having seen the questions at the supreme court prior to that  right that's correct and so even before then a good she one that was known that circuit authority on this you didn't raise this issue i'm sorry no tanna grucci had been decided by the ninth circuit during  is that correct i i don't remember the timing i believe that there was upper ninth circuit authority as well as just for the party that held that those written interger costs were properly taxable under the then  now there is no dispute that there is no statutory authority for the for those costs to be applied and we would submit that under morris when there is a clear change of intervening law that should be applied in this case