court's decisions that fees awarded for litigation misconduct must bear some relation to the misconduct and this case there were two instances of litigation misconduct that were found by the trial for one had to do with inconsistent testimony regarding written licenses for the patent issues and today today there's been no explanation as to how this inconsistent testimony resulted in additional fees being incurred by our k i they did however submit to the trial court that eight thousand five hundred seventy five dollars and fifty cents in additional fees was incurred and that for the license issue the second instance for the litigation misconduct was found by the had to do with some documents related to a project called i fifteen now that misconduct specifically was that the vice president of the company did not look in his personal files or in a storage area for certain documents related to the active team project what happened was r k i went to utah where the idea of team project took place found some documents and they incurred additional expenses in going to utah and locating this document those additional documents were deadly were they were your own they ended up being an a and your company didn't know that it's had a prior proposal and you may not have known it but surely your company knew what their business was well in this particular instance your honor the materials that were in those i fifteen documents that were as you said were deadly because they resulted in summary judgment against are and the question were in about the public use issue i mean it that's not at issue in the appeal but that's not an issue on this appeal but the reality is that it was a couple of statements within the company did not realize that that was an issue in this case they did not take a position that that was within the scope of what was claimed in the patent it was a different project it was never used it was a part of a contract modification that never took playing so that was their explanation for not understanding that the trial judge asked specifically for discovery of those documents in the trial judge for the i yes sure it can be in the state but the truth is that there was a relationship between the misconduct and the penalty here wasn't there and a district court was very clear that is the time period extends back to when you should have produced a document up until the point of summary judgment that's a linkages and well the prob with that is it's based on speculation because the summary judgment that was actually filed on july thirty first two thousand and nine that relied on as i fifteen documents could not have been filed in two thousand and seven when the trial court said it could have been the most for summary judgment in that case heavily relied on the mark when determinations by the crown court and those determinations were not made until april twenty seventh two thousand and nine year but the misconduct began earlier they could have moved for summary judgment earlier the case could have been over much earlier if you had produced the documents earlier that that would only be all of these are facts in the record which we really can't we'll quibble with again with too much i think if it can be argued that they could not have final that summary judgment any early for i could just easily say that if these materials had been produced in two thousand and seven that they would have waited for a marksman determination they would have waited and conducted discovery and then filed their summary judgment and that is actually more consistent with the facts in this case than suggesting that if we answer produce these documents earlier than the trial court would have immediately well first of all that they would have immediately filed a summary judgment but that's all speculation it's it's all speculation but if you look at the facts what i'm about i said that the trial judge said produce these records you didn't produce as a result the defendant had to go probably to your web site which is where you reveal the fact that you had that high fifteen times track and then they had to go out or what your prior activities issue was simply the materials that were produced from that fifteen project did not include these two documents that were relied on the summary judgment they went to utah and found those incurred additional expenses of seventeen thousand one hundred forty nine dollars and had they had a merrily or chief judge rate are correct that this case could have been terminated a lot quicker than that true that would not be true it would be inconsistent with the actual facts they found these documents in april two thousand and nine they did discretion it has no the eight hundred thousand dollar award is based on speculation there is no link between what your response is speculation as judge like your points out we do have to speculate of what would have happened if there had been living geisha misconduct that because the misconduct was yours isn't a district judge with in his discretion to place the full burden of that on you i don't think that it's appropriate to speculate as to what may have happened in the past with the benefit of hindsight especially when that speculation is inconsistent with what actually happened once they found the doctrines they didn't move for summary judgment right away they waited until the market determination they conducted additional discovery at a scheduling conference before the trial court after they'd had the documents for months they told the court they still needed more discovery and more time to file their dispositive motions so everything that's in this case as far as the facts indicate that they would not have been any better position to find other summary judgment any earlier even if those documents have been produced or who was a district court correct in the conclusion that had the documents been produce when the discovery requests went out that there would have been no case that would have ended the summary judgment not the summary judgment that was filed a point to as an example wide area network that was a disputed term it was a term that was argued in their summary judgment it was debated in the briefing to the court on the summary judgment and even the trial court when he did a summary judgment order discussed over two pages the impact of the definition of wide area network to the invalidity analysis to argue in retrospect with the benefit of hindsight that what we would have argued about quite area network which was a  disputed term in the mark when the terminations isn't consistent i mean you cannot take the it is incorrect to take what was filed as a summary judgment on a in on july thirty first two thousand and say  own words they had to conduct additional discovery before they were in a position to file their responsive motions if they had wanted to file their summary judgment with these documents and as they said file it immediately they could have done it in mid april two thousand and one they found but in fact they waited for the summary judgment that i mean when mark when terminations they told the court they weren't in a position yet to file their summer job that they needed more discovery and in fact from the point in time when they claim they found these documents in april two thousand and nine to the end of this discovery period they chose to take twelve depositions this is these are depositions they noticed and took and these are the facts and this is what really happened and now they're trying to go back  the one and say well you know this is been produced in two thousand and seven we would have just as easily done file for summary judgment and a then are you saying that the trial judge is saying the trial judges agreed with their arguments and he's as sound as and when that is a fact and we contend that that is an abuse of discretion because there must there is no discretion to award fees that are not related to the misconduct and in this particular case they've argued for a flea eighty five hundred dollars was related to the licensing misconduct they spent seventeen thousand one hundred forty nine dollars going to you told on these documents but other than that there is no linkage and everything else is just based on speculation have a trial judge awarded a hundred thousand dollars and you're saying or that something less than twenty five that is roughly twenty five  proper legal standard made findings of fact and the appellant has not argued that the district court made a manifest error of judgment in assessing the amount of fees accordingly it's our position as laid out in the brief that was the standard to demonstrate the use of discretion has not been met and respectfully request that the court affirm the district court's judgment what is our standard of review you seem to be and we ask you here for it that you affirm the district court's judgment and i'll be glad to answer any questions you have on our on the breeze i suppose silly question is why in fact at what stage when you differ from the american do of the parties bearing their own attorney's fees and here agreeing that that there was some sort of whether it was misconduct  this cases is an exception to that rule and in addition to other reasons for having exceptions one of them is the misconduct and there's been just record judge laid out the number of facts supporting his position and th we've laid out in our brief in the district court laid out in its opinion this is a perfect case for an exception that applies to a particular kind of misconduct i'm curious as to how you apply uncovered the i fifteen i mean we have been looking for them and asking the for them for about but a year and a half or more and through contacts in the industry understood that the utah department of transportation had an archive and located that archive and just by happenstance they happened to have the documents for this contract still in there while our consulate went out to look for them and the particular documents that we found that were dead they just happen to be in their archive so it was  thank you your honor one case that i think is particularly helpful for this situation is the hoax case which was decided by this court in one thousand nine hundred five in that particular case this court found that there was litigation misconduct because a sham expert affidavit had been submitted to the drug court and what was related to that as far as a field or which was determined by this court is the cost of going and taking that expert's deposition the costs related to moving to strike that expert those were calls that were directly associated with the sham affidavit by the expert this court decided that the case needed to be reversed sent back down to the trying to board so that the trial court could determine what were the fees and costs related to the deposition and moving to strike that expert if we follow that same logic in this case and look at what was what were the additional fees incurred because of the  licensing testimony to the trial court found was inconsistent they submitted eighty five roughly eighty five hundred dollars what would the additional expense for not producing ip fifteen documents that were going to really deadly to the cake seventeen thousand one hundred forty nine dollars was the additional expense for them going to utah the trial judge said plaintiff's misconduct directs the cause defendants to incur hundreds of thousands of dollars in ultimate when it's not related to the specific misconduct found in that case i have a question and one more question for mr adams which is that you asked for your prayer for relief that we remain the case so that a determination of the fees and costs related to the you talked to and be made obviously is as to what those fees and costs are in fairness if we should we may and shouldn't we also ask the trial court to reconsider whether the award should have been the one million two that they asked for rather than just eight hundred thousand that he granted i think it's wrong that the part of the remand part incurred because of the license testimony and just those two things the fact is by the third time they tried to ask for money i mean what from one point one million roughly to eight hundred thousand they tried to bump it up again one point two million the trial court was already getting down to full as to their good faith in their requests for attorney's fees so i think the court's instructions to the trial court in this case would be look at the inconsistent