the trial court used its discretion by excluding aggregate evidence of partial payment of overtime to a pallies when the appellee s were already aware of this payment because they were the ones who ask permission to use their credit hours and then when i had a news that the formula for calculating damages in this case was relatively straightforward the court if at least i think i understand all of that so can i ask you i didn't see in the record but maybe there was when the fact is starting in two thousand and eight were there discovery requests or a court imposed discovery  individual plaintiffs information about what credit hours they earned and what they used that that was an obligation that in direct you to supply all of the information to the best of my recollection there was a request of scary requests from plaintiffs for the the government and which had the availab my recollection again was that the that the plaintiffs asked for they were aware that there were different payroll systems that applied to different times because at one point the f a a the agency had used one kind of payroll system and then they switched to a different one and my recollection is that the plaintiffs asked for for all of those records yes for the payroll records as well as records of credit hours earned and  the position that nothing there after it was relevant basis every two weeks plaintiffs were continuing to use credit hours so although that meant that it was sort of an evolving picture and there was no agreement between the obligation to supply i don't know when you first gave information i think there was some there was a motion to stay in two thousand and eight and there was a priest status report in two thousand and nine which state everything except your discovery on this this very thing and then you get to two thousand and eleven and you have up to that point supplies information that stops on september thirtieth two thousand and nine so while yes you're wrong and then there's an expert report and in fact the only expert which even when you first submitted the materials you did not reserve the right to supplement as additional materials might be them we do not reserve the right but i i don't believe we have an obligation to reserve that right or that we have an certainly don't think that results in any kind of a waiver of the respect to credit our usage after two thousand and twelve because clearly that information didn't exist so there's nothing that we did or lead i believe the plane has to believe that credit our usage after that time didn't count in fact we had people testified the lower court and this is an abuse of discretion to yes it is the lower court seemed to believe that you at least let the court to believe that this was a self contained calculation with all the information that was needed by all sides to do that calculation and whether or not you think ultimately you could have made different calculation are you produced this information sooner that's not really the question the question is whether the court abused its discretion and saying we're going to put an end to this litigation the government didn't produce the government never made this argument that there were going to be additional process and so were done but the court analysis of whether to exclude the argument turned to some extent and the court acknowledged this that if it  required or turn to some extent on whether there was any harm to the pelleas from considering the seven and seven looked at that five part test how important the evidence was and whether there was any harm and that is one of the areas that the court made because the court discovery was necessary but that if ultimately a relatively small horse of discovery was necessary then it would be likely to prejudice the plaintiffs so the court's decision doesn't even actually buying that there would be off at the beginning of the case as nonexempt became exempt and therefore eligible to earn credit hours and that was all evident from the records that we provided to a pallies so the fact that in the court's decision earn credit hours even after two thousand and nine but it's a very complicated analysis i mean with the port says that having to reopen discovery and having we're not talking about five people we're talking about woomera his numerous families and all of whom would have to have their records reach and the government had control of that information and never turned it over and once turned over the pla earning and i should have been earning not a single one to come forward and proffer a claim or an allegation or an affidavit that might justify actually needing discovery in terms of reopening things so  because there's really no demonstration as to what discovery would be needed and how that discovery would relate to any issue in this case i think i might be into my rebuttal time i'm so not used to being in a palace but i'm not really sure i'm going to twelve and thirteen years ago your honor you hit the nail on the had that in december two thousand and fifteen four years after the close of discovery the government attempted and after a trial and an appeal the government  inject a new issue into the case in the new issue would be the cruel and use of credit hours after october first two thousand and nine that had never been an issue in the case we had explored the issue in discovery and the parties had determined that there had my recollection think i looked at all of your sites they were all about no more earning of credits no one was about your that's not correct in the first party's post trial and in the duke government's brief the government said that the latest collective bargaining agreement agreement with the air traffic controllers union the august october first two thousand and nine agreement the f a a agreed to admit all prior practices pertaining to credit hours all prior practices what's your response to the argument that even if they said that that some of your clients would have had to know that they were still getting  hours on the books the calculation of which credit hours were illegal and which weren't it's extremely complicated it's so complicated the defendant can't do it itself relies on our expert to do that so how would you expect an air traffic control of the note of the particular credit hour they're using is a credit hour that violated the law second of all under five u s c section sixty one thirty flexible work schedules are supposed where there's a where there's a union are required to be negotiated with the union and credit hours are not supposed to be used with respect to individuals who are in the bargaining unit without the unions approval the two thousand and nine agreement completely eliminated that so what we one of the things we want to do discovery on is under what circumstances were these credit hours used since the union is no longer policing their use was it unnecessary a situation where people were told use the credit hours instead of your leave how how are the accruing credit hours and your honor pointed out there are experts per se review to show that people were earning credit hours accumulating them as well as you know there's one individual scott more appendix one thousand ninety five who had thirty four credit hours which of course would exceed the twenty four credit hour limit so there's some sort of nefarious activities going on potentially that we would want to look into the other the other point with respect to  these are all things that we didn't need to explore in the parties because we didn't have everyone agreed that the credit hour program it ceased october first two thousand and nine that there's just there shouldn't be any doubt about  that based on the record including judge hewitt november twenty four first two thousand and eleven instructed the parties to get ready for trial and had them do a number of things in the party's joint stipulation of fact the part is a joint thousand thousand and nine including records of balances such as compensatory and credit hours by pay period controller's expert dr liniers calculations were based on data the government provided of credit our uses and accumulation through october first two thousand and nine and at the trial mr staley testified in mr staley was the government's thirty six witness on controllers pay he is the expert for the government on the pay practices and policies and he tech testified that the credit hour program discontinued effective october first two thousand and nine and i already cited the post trial brief by the government so the prejudice that the plaintiffs will suffer here if the case goes forward is to delay and needless expense leading to years of discovery in another round of litigation the needless expense is of course ochterlony here will have to redo calculations but he decision we're going to have to retake rule thirty b six depositions on how on earth there is a credit hours program in effect for people who are accruing and using credit hours after october first two too it's an issue under five u s c section sixty one thirty the huge credit hours flexible work schedules have to be negotiated with the union that the record at the trial was that the union had just the credit our program had ceased that's undisputed so what was going on there were credit hours without a union agreement to do so so suppose suppose one of your clients in november december two thousand  use credit cards what do you think the litigation would look like about whether that should or should not be subtracted from what would otherwise be owed what i would need to explore in discovery usually we'd look at what sort of memos etc went out about use of credit hours after october october first two thousand and nine we didn't receive any discovery like that in the earlier litigation because everybody thought the program had had ended we would we would require discovery on the issue say can't subtract because it turns out it was illegal well we might say that we'd also want to see the circumstances under which it was used to that comport with the free right to use the credit hours with f a approval but that they weren't influenced or somehow required to use them contrary to law for example maybe they instructed them you can't use your leave and to use up all your credit hours i don't know because we haven't explored that but i would like to explore that very much because everyone in that and in the case than tell december two thousand and fifteen that this program had ceased october first two thousand and nine so i would want to explore that i also want to see if i should get liquidated damages for when they use the credit hours there's a huge delay in payment as i mentioned at the start of this argument they're they've waited nine ten eleven twelve thirteen years to use these under the recent court of claims martin decision which follows is a citizen the second circuit in rogers and follows the big decision in the ninth circuit delayed payment requires liquidated damages we didn't get that earlier so we will seek that for all of these credit hours used after october first two thousand and one if they were in fact  and of course depending on the circumstances under which they were used if they were under circumstances that violated the law then we would see that they get no credit for that and then of course we're going to have to go into a trial on liquidated damages again and i will because it's likely the government will put up a defense on these issues and we'll have another trial as well now the harm that the plaintiffs offer is they've been awarded look we're damages on their exist excused and the question of whether there's prejudice you know excusing the mistake plays a role in answering that question putting aside the kinds of issues that you described about inquiries  be as important piece of i'm not familiar with that being recognised as an important piece of prejudice in these circumstances i just think we can take notice that in there are cases under the a two a one f there are four sixty five or two thousand case so the point if they're stuck with a certain amount and if the case goes on for several more years then of course do the time value of money  r the value of that their damages will erode but also there's the problem and one reason the cases when they go on this long there is substantial prejudice we suffer from the delay because we have a key witness a union president who negotiated the credit hours program was passed away all right and and we also course have faded memories that satar and people are talking about about credit hours and what the programs were nine years ago explored this program back in two thousand and ten eleven if it was in fact going on and it would have been a surprise to the union i think and we would have had all these issues before us at trial and instead what we've got now is well i have to respectfully disagree with my colleague that it's undisputed that the entire credit hour program ceased because it was very clear that the credit hour usage continued and certainly council may not have been aware of this but pelleas the party was aware of this they were the ones that were using that credit their own free using the credit hours and again the appellate themselves were aware this case reminds me of a situation where it's as if a pelleas went to the grocery store every week bought a bunch of groceries got a received for their groceries and then at the end of the year when presented with the total amount that the groceries that they bought from the supermarket said what a surprise these parties these appeal these are the parties they were the ones that were using it and despite the fact that they knew that they were still using it and were therefore allowed to use their credit hours no discovery was ever sought about that program continued use the discovery did you discover how many places are here they were over eight thousand did their records that they had or did not that information that you now can see that we didn't give it up in the aggregate form all we did was put it in the convenient we took information that was given to the pallies on a bi weekly pay period basis they get they have time and attendance cards their payroll we made it in a very convenient and warm that pursued it on the basis that there was a term and date for these cancellations that's what you told the trial court these were complicated calculations that court had to go through and then you're saying oh by the way well with respect to the through the time period up through two thousand and twelve we we agreed only that the achilles experts calculations were based on records through two thousand and nine that was the agreement we didn't we didn't say there was no usage after two thousand and nine that was a mistake i take full responsibility credit our usage continued from two thousand and twelve on through two thousand fifteen we could not of put those records in front of the court back in two thousand and twelve we did provide them to the pelleas relatively soon after this court's final decision and remained in the trial court took it back over again this could not have come as a surprise to the were the ones that were requesting permission each time they start credit hours they were on notice that the court formula the formula the court adopted was going to subtract the value of credit hours used from any overtime pay that was the formula they they just ignored it and we brought that to the court's attention we said look we've updated this and they're just not even addressing it even though they know that's the formula and in the past have voluntarily included this information in their calculations and again they didn't they did not