issue appreciate notice is further proof that mr hill shines and major a claim should have been remanded to the state court because it is evidence that there was a novel issue of state law which was before the district court i'm so turning to the issues that are novel to this particular appeal for mr holton i'm mr holmes i'm acknowledges that he faces a high hurdle when it comes to the standard of research view with respect to the question of whether or not the district court erred in failing to exclude the show its failure to disclose was substantially justified or harmless the district court shifted the burden to mr culture and to show it was time by the failure to disclose so fundamentally want this case comes down to  practical the potential practical ramifications from this is how much our part is going to disclose prior to summary judgment if we were to take position to the logical conclusion litigants can decide put forth any number of affirmative defenses pick the one that they think they are most likely to rely on disclose that information with respect to that and ignore any of their obligations with respect to any of the other forms of defenses until it's time for summary judgment which point they can just say well because if because if they want if if we if the court wanted to and if the court is willing we can open discovery we can reopen discovery and look into those facts which we should have disclosed and essentially start to talk over instead of moving forward with summary judgment you know i tend to agree that you have a good argument under the rule that the language of the roll use the word may use these defenses it doesn't require that they actually be the favored defense or something of that nature but then you get to the exceptions which is harmlessness and i forget the other one without justification justification when you get to harmlessness i'm not sure you have any harm here for two reasons one was the ability to take a deposition of this particular witness which i you know which i think helps there but then also what really this claim to go away was the moodiness itself and not what the what the what the experts said in other words it wasn't a failure to disclose the expert it was the fact that actually changed and made the made the council only said that she would consider allowing my client to take a deposition not that she would make them available and that we would get it done in an appropriate amount of time for my client to be able to respond and because my client is not the person who failed to do the disclosure it is harmful for him if he has to bring substantially more motions to open discovery again or to stay the briefing schedule that should be on the person that failed to disclose if they're going to attempt to make that disclosure harmless nondisclosure and party should be the one doing the work to get to get to that point not the person that was harmed by that and then with respect to whether or not it's moot it's not clear from the the affidavit whether or not it actually is moot and that's why that is another reason why i was harmful my client relied on their disclosure only up an interesting fact affirmative defense and because we're in a few shifting environment and because the rules of discovery dictate that my client try to tailor his discovery requests and the burden he places on the other party to the issue isn't in dispute my client didn't inspection because the post oh that day decides to fix it after discovery is closed i know that's not this case but they decide to fix it after discovery is closed and you say well you didn't then they come in with an expert that says well we fixed it it back complies with everything you've got it yet an affidavit you've got pictures you've got diagrams name the proof you've got it and you say well you didn't disclose that the argument be that they can't come in and argue that the case is moot because they did disclose the defendant attempted to bring in that that evidence literally showed up to court with a declaration and it was found to be too late because at some point it does need to be too late because both sides need to be able to present  new adversary presentation and both sides need to be able to have the opportunity to collect those facts so for example my client needs opportunity he needs to be aware that they're making changes and he needs to have the least opportunity to take a science fiction after he becomes aware and to challenge the person that's taking the measurements take their deposition to figure out does mr baird you know what he's talking about when he says that level does mr b does he does mr djerejian know how do you take measurements appropriately when we're four in this in this context and my client wasn't able to collect those that evidence because it appeared on the face of what was provided the hot holiday had given up on that affirmative defense and so representation so he doesn't incur the additional cost on himself and he doesn't place of those burdens on the defendant or he gets in a situation like this where because the defendant didn't apparently doesn't have to disclose what is what a layperson may consider to be level versus what is required by the statute are two different things and we we don't have measurements from mr barrett with respect to what he means by level his affidavit doesn't say i took measurements of the x sile and i took measurements of the parking spaces and they are all less steep than one to forty eight or one point one nine degrees is your argument in this case and somewhat again we're not saying that that we're talking about what is sufficient at the summary judgment stage so mr hill shame only has created genuine issue of material fact in the previous case and there's our position that his affidavit did such in contrast in this case holliday is moving for summary judgment and when it comes to the issues of notice they need to prove that is their burden and one of those very specific things that was alleged in the complaint was that they weren't compliant with the sloping requirements under five hundred two point four of the twenty ten standards which says that the acts of sile in the parking spaces need to be on the same level and they cannot have slopes greater than one forty eight and even though they were on actual notice that my concern client was concerned about these issues the profound to provide any measurements with respect to that aspect so although they may be able to again if this was to go back down and we were to go to trial they may be able to later bring in those nigerians at this stage in the lot of patients they haven't met their burden is on the say that they won't or they can't ever it's to say that they haven't yet and that my client should be entitled to again the  summary judgment at this stage so that he and potentially reopening a little of discovery so that he can collect the evidence that he needs to adequately defend against that potential affirmative defen  i holiday's position as in my position as i believe that we were in compliance with the rules as they were amended and there discussed after the two thousand amendment the the  comments to the rule basically talk about the fact that you're not required to disclose a witness or documents that you do not intend to use regardless of the allegations in the pleadings but you are seriously it just says and may be used to support it claims or defenses so it's seems to be broader or actually narrower the way you phrase it than just anything you don't plan to use you you don't have to disclose well to read the comments it really is is is narrowing i mean it does certainly obligate you to timely yes we had asserted the minister found among many affirmative defenses in our answer but we were particularly focused on the minnesota human rights act statute that had just been enacted am in particular focused on the notice as we were you know really delving into that statute and realize that the affirmative defense provision that judge strauss mentioned in the prior appeal realize that that's really independent and separate from the notice requirement gee there's an opportunity here to raise that issue  of the m h r a claim and it was you know in developing the motion itself that we determined that we would pursue that route but even if we assume that we had an obligation to consider affidavit submitted in relation to summary judgment motions and it's also a very broad discretion given to the district court to decide what if any sanctions or any other remedy is appropriate and the cases have explain factual question for twenty six seems to apply to things that are in the disclosing party's possession custody or control was that and maybe just be on the record you could tell me that but was that affidavit actually in the custody possession or control of holiday station stores while discovery was opened which is what the roll seems to apply to you know the affidavit was prepared as we were preparing the motion for summary judgment and i believe i submitted an affidavit in response to the the motion to strike where i explained that where it started was i was going to pursue that affirmative defense and count it will shine had produced in the course of discovery a photograph of what we refer to as the temporary upgrade that showed the temporary upgrade bringing the story in to us i would say a temporary compliance while they were pending a planned remodel and looking at the photograph because it seemed to support the affirmative defense argument and i put i affidavit contacts holiday to say hey can you tell me when this temporary upgrade i didn't know was a temporary upgrade but when was this done so i can put that in my motion papers learned that this was an intimate only temporary upgrade because there was this remodel that it's probably a close call but i think obviously you know we produced produced it as soon as we have it or certainly within a timely manner there after but again given the court's high standard any and it's deference to make these type of burlington's here the court did decide that b disclosure i want to say it's a late disclosure was harmless and there were several factors that i think the court took into consideration first the photograph that's marked as exhibit a attached to mr breen she's affidavit is the photograph that mr hill shine had produced in discovery again showing that temporary upgrade in the court notes that the photograph reflected in and of itself that the store had been brought into compliance as of the of that photograph which appears to have been around august of two thousand and sixteen there's also the fact of the record clearly shows that despite arguments about you know the inability to respond adequately to holidays motion time did submit i think a reason to response to holidays motion they presented arguments including arguments attacking mr breaches affidavit and you know whether it was sufficient and in so on certainly at no time did they raise an argument to rule fifty six d which would certainly permit a party to say hey i cannot sufficiently respond to this motion without additional discovery or without additional time or an opportunit get my own affidavit there was no motion like that and significantly the court did take into consideration that when counsel approached me and said hey i want you to strike your affidavit and my response was no but i can certainly understand if you want to take his deposition i'll consider that request part of it is i need her to let me know if she really needs to take his deposition much of his affidavit is i think his counsel even acknowledges i s pretty factual it's historical it's verifiable i think in show she described as much of it was not materially probative so it seemed that in her own view this affidavit is not one that she really is going to be able to tack very much on cross examination you know it's basically dates when certain things were done on appeal is the first time that she ever raised an issue regarding and you know a need for site inspection or need for any other discovery those issues were never raised to the court below you know and i will note you know there was no request to do a science faction or to do any kind of discovery even though it's clear that mr hill chime in as attorney were aware of the temporary upgrade as of august twenty sixth which i believe was a year or at least a year before our motion was brought and there's alternately no explanation as to how having that affidavit any earlier how that would have changed the outcome of anything here again it's very factual information you have photographs showing a temporary upgrade you have a photograph showing a final remodel both of them show the parking lot being in compliance because the standard really is you know the parking space and the access all have to be on the same level you know and you know the allegation the complaint was that they were quote not level and obviously if you look at the photographs that the court considered very clearly they are level after both the temporary upgrade and certainly after the final upgrade i want to move very quickly here to the issue we raised on our cross appeal which is the b m e h r a notice statute three sixty three point three three one as it was in a fact in two thousand and sixteen obviously whenever you're trying to interpret a statute the goal is to give the fact to the legislature legislatures purpose in an acting that statute here the district court recognized not only in our case as well as in an earlier case i think what the proper purpose of the statute was which is to curtail lawsuits generally or forcing or coercing businesses into paying money to try and settle these cases involving what are usually minor technical accessibility issues rather than  the costs of litigation why do we care what the purpose says if the statutory language is play well i think in order to affect you have to under have under understanding appreciation of what the legislature was trying to accomplish maybe but i served on the minnesota supreme court and i can give you legions of cases that say if the statutory language is plain we don't go to purpose which is considered a candidate construction so why do we care about any of that well i don't mean i think because the stuff that you want to give a fact  legislation you want to take into consideration what was what what is its ultimate goal here to accomplish you can look at the plain language and i think reach the same conclusion and i think somewhat ironically i think where  statue could be stated in some ways claire but i think where it's the notice requirement and the fact that it really is intended to require a business to get notice and an opportunity to cure any of these minor accessibility  technical defects before facing the cost of litigation really comes through and there are exceptions and we talked about this in our brief but if you look at exception five be what it is this section referring to thirty three sixty three eight point three three one the section does not bar a person from bringing an action enough certain conditions are met and as we talked about in our brief bringing has been interpreted under the minnesota human rights commencing so it saying that the section does not bar a person from commencing an action if certain conditions are met now there would be no need to have that exception if in all other circumstances you know if there wasn't a require a preclusion otherwise the firman of defense was in both versions that's always been there i'm sorry the affirmative defense provision is in both the twenty sixteen and the twenty seventeen version of the statute this is really related to the the notice requirement which is within the ok so when you read the statute really you read the plain language including that exception clearly saying that you know you're not barred if these conditions are met by default you must be barred if you don't meet one of those conditions the plain language of the statute talks about clearly reflects discouraging litigation and talks about you know pretty litigation resolution both in the notice and in the statute  is there any textual help that says you have to send such a letter i read that statute five times six times and i got to say it's not the most clear statute but i didn't see anything that says you have to send such a letter or that there's any consequences for the failure to send such a letter and i wrong about that well in that's right agree with you that it certainly could have been stated with greater clarity and i think that's when you go back to hear whether you want to say you need to look at the legislative history or you need to delve into what the purposes like think that's what helps understand because it doesn't really clearly say you have some unknowns here and here's what the consequence is however if you're not required to notice if there's no or no consequence what is the point of the statute what does it accomplish well could it be possible that that people who are sending out abusive notices you know that there is abuse of litigation taking place and the court or the legislature will say you have to send out these letters but we're not going to lie you to send out letters that are abusive that are blackmailing these folks you know the business whatever the case may be and so if you're going to make the affirmative decision to send out a letter you need to follow these requirements so that you don't engage in abusive tech litigation techniques well i certainly agree that the context of when they were you know passing the statute there were you know we've submitted just a sample you know of the many many many cases that were being sued out on these types of cases you know and a lot of the businesses you know i'm not going to say that they were abusive letters or anything that was going out but you know you get a lot are and you're the my client is probably the exception a lot of these businesses are probably run to shop operations and you know if they're given an opportunity to say you can make the lawsuit go away for a couple thousand dollars they're going to pay that money as opposed to facing litigation and presenting any defenses or any arguments and i think that is really what the statute was trying to accomplish and i think like i said the district court i think correctly recognize what the purposes i think it's ultimately ruling ultimate ruling does nothing to help give effect to that purpose at all unless there's any other questions thank you indicated which would say that holiday had in their possession include control multiple documents that showed that they were in the process of making up grants for example that this is been planned since november of twenty fifteen and that and that the actual changes were initiated in november of two thousand and sixteen so although they may not have drafted the affidavit yet they had those facts they had documents that supported those facts in their custody and control and one of the things that appears to be happening here is that holidays counsel is confusing when she learns about predict particular information with when her client knew about those that particular information and it's the obligation is not on holidays counsel it's on holiday itself they are the ones that if they're going to be asserting these defenses they need to be looking into them and they need to be a provider those are the documents that are required to support that so simply because their coun had decided on a particular strategy that and then when it came time for the briefing to commence she realized she might have one of the other defenses that she had previously provided might actually be a better defense that doesn't get rid of their obligations because if it did then no defendant would discuss their century right the initial disclosures right out of the rule because all you have to have to have your your attorney say you know i thought i was going to use this just this one defense but now i looked at it more closely i want to zoom down to the briefing and i have finally talked to you about this and you know what we have these other defenses turns out they're great and if that's the case why would anybody disclose anything because you can just rely on the fact that your client that your attorney had only was only think about one or two of your positions supposedly  with respect to this notion that my client should have moved under rule fifty sixty again that's placing the burden to fix the failure of disclosure on my client and not on holiday and i don't think it's appropriate for the party that did no wrong to have to bear the burdens that come from that failure it should be failed to disclose something and they want to use it they need to take the steps necessary to mitigate those damages not my client and then with respect to the mh ari amendment process the legislature late of history i believe shows that at one and sixteen they had one of the versions of the bill did include the language specifically stating that it needed it needed to be sent that was removed before final passage so although i agree that it's plain on its face and we should getting to legislative history if we are getting to the legislative history it's very clear that they did not intend to include that phrase in the twenty sixteen version of the bill they it was in there for one version they took it out before final passage that's part of what happens during the to get bills passed this give and take and we have to deal with what's in the what's alternately in the language you know questions