entirety and clearly erred by failing to consider all the facts that went along with it to convince you this this question i'm not sure you made this argument in that in the brief my understanding is that for kids on the rule thirty all about refusing to answer questions under other discoveries that's correct your honor it's about an alleged refusal to waive the attorney client privilege during the m privilege that i beat she wins anyway because there was a pre filing investigation and it wins on the merits and because there are several other areas in which quote i b t produce no documents evidencing any infringement investigation that's a thirteen but we know that's not true because i believe he produced over five hundred pages of pre filing says that based on instructions to mr harris not to answer questions based on attorney client privilege mr c refused to answer questions regarding his own on involvement in formulating whether or not that good faith attorney client privilege argument which is disputable is not what's at issue in this case what's at issue in this case is the pre filing investigation which was done by where we were just with me so you're not going to answer my question i'm sorry can you can you repeat the question you know my question was how to make that argument that face the argument of attorney client privilege when he's the attorney and the client he's not the attorney he's the inventor and the client the attorney is an iran firm so i suppose this sort of blows over into his work of fiction richardson when he's an attorney who sues i see relevance because in both instances he seems to be saying well i'm the inventor so i'm not the attorney is that not correct he is saying he's the inventor you know in both instances when he's but that's not at issue in this case rather i believe you're referring to so here what you're saying to me is whether i think it's relevant or not you don't care to discuss it no no your honor i'm sorry that's not what i'm saying at all ok what i'm saying is that this is a case in which he was the inventor and he had transferred all of his rights over to i d a g is not a case where he was employed by the fishing richardson firm and he don't believe it's proper to make a judgment about the type of company you have to look at the merits of the case and on that particular question about piercing the corporate veil the district court didn't make any kinds of specific findings what factual issues if any are necessary to have findings of ballots in order to appeal to the court where that of the district court would need to look at the course that particular mr harris is not in the district court object to personal jurisdiction well i believe that is not entirely accurate mr harris is a thirty six deposition in which he did not object and under the law thirty nine i think i said i don't mean mr harris in a testimonial capacity i mean mr harris as represented by a lawyer making legal arguments when he was notified that he would be at risk it wasn't presented to the district court that you can waive personal research or we would disagree because we didn't i b g did not know that the district court with going to exercise jurisdiction over mr harris and so mr harris didn't have the opportunity to provide personal jurisdiction during the briefing for the for the attorney's fees motion your opposing counsel specifically said that you know they wanted attorneys fees from i p t its attorneys and naming mr harris and mr parker and in your opposition i didn't see any commentary about any of this and so i'm also trying to figure out whether both of the issues are wa both respect with respect to piercing the corporate veil with respect and power and personal jurisdiction with respect to mr harris given the way that the briefing was that the district court judge never had an opportunity to consider the arguments which was produced after the conclusion of the case in the merits of the merits phase of the case when i did he waived the attorney client privilege then those documents and some of the documents that it was previously  failure to under twenty five twenty six eight or twenty six b that is the the time since it was monday disclosures and supplementing expert reports it's all about  claim of privilege and and what not in response to deposition questions interrupted tori's other things so how does rule thirty seven see one even apply sure i'd be happy to start there and as you suggested this this argument was not provided provided or presented by bt either below or in response to the break so earlier in to this court so i'll try to do the best that i can but as far as i understand part of the problem with what they did in presenting that all this information during the what they call the attorney's fees case part of the case is that there were additional people that were involved for example in the pre filing investigation there were others as the nairo firm in particular there was yet who wrote this kind of key memo that we think is so inconsistent with many of the positions that they take so there were actually individuals who would have had information that was relevant to the claims at issue in this case that were not presented to us in initial information out of hand appearing on any issue that was going to be litigated before the resolution of the merits so it has it has an impact on both infringement and  invalidity and we see this throughout the materials that they supplied with the vitale declaration that there actually were admissions regarding the scope of the prior art that there were admissions regarding whether or not it's inherent that you're going to decrypt the piece of information because you encrypt it and with respect to the individual associate at the narrow firm that i mentioned that i mentioned before she provided some interesting information regarding the infringement and whether or not there was a response to the defendant no infringement positions in this case that's absolutely relevant to whether or not the defendants actually are in fact infringing so i do think and to take that question more broadly in the context of pre filing investigation because i bts position that i would never be relevant to anything in the merit phase of the case if you take for example the situation where you have to test if you've got a compound and you have to test to determine whether or not the accused product the compound has a  certain makeup chemical makeup you may do testing and then you're going to claim privilege and withhold that as work product you're allowed to do that they will say that you can withhold it is work product but the problem is that the test results particularly if they're negative those absolutely implicate whether or not there actually is infringement so the pre filing investigation is heightened to the actual merits of the case and it's one of the reasons that we believe those in dip case and more generally that you can't have this dichotomy of america phase and then attorneys fees phase so i think you said this already but i'd like you to tell me again what are the specific components specific items in the excluded material that you think would be relevant or would have been relevant to the merits with aviation here had it actually been or the one example that i said was that the respect to the memo that was proposed for pared by the nairo far i think that that had information that would be relevant to the non infringement analysis in terms of whether or not there is any response to the actual  position that the defendant ended up briefing on summary judgment with respect to the limited exception owed there's also information i'm sorry that that was way too complicated for me to to follow ok so there is a and i can get to the site there was a memo prepared by a nairo associate and it was trying to walk through the not infringement position and in particular when they got a limited exception load she specifically asked the question of what is our response to this and the memo and there she can identify a response to the very position that the defendants including the shiba ended up briefing as for why they're entitled to summary judgment of not infringement and you think that and i guess that seems rather broad that in the attorney's internal discussion that raises questions in preparing a case that has to be i am to figure out how to proceed w actually be relevant evidence to be presented on the infringement issues and in the trial i think that it would because the the what we saw is that they had no answer and if they did it must be contain the other documents that they've still continued to withhold that's part of the problem with the vitale declaration it wasn't just that they produced it late it wasn't just as judge while it pointed out that there were documents that weren't found on their privilege logs one of the any ground other than you didn't provide them at the merits if you can't provide them now right then i would disagree at eight twenty in his opinion he actually makes exactly this sort shield argument and he says having raised privilege objection as a shield to black defendant access to relevant evidence i mean he cannot now cherry pick documents so he was absolutely concerned and we don't know i mean the answer is we don't know the relevance of the rest of those documents because they weren't provided to us they weren't provided in camera to the district court and the district court did find that as part of the part of the grounds for striking for striking the declaration  ground we're going to produce materials right that's correct and the other two pieces of information that i was going to present to the judge tronto in answer to your question of both relates to harris's claim charts  number one where he was trying to identify where encryption was found in the in the accused technologies he actually pointed to prior art to a previous version of the sushi the software that actually constitutes prior additional discovery under rule fifty six b when they got the materials they didn't use them it seems to me it must be extremely common to say we need to know if something is out there you get the information it turns out not to be relevant and you don't rely on it what's the what's so wrong in that portion of his opinion i agree with you that that's all that he cites too but in the fact finding he also points to the fact that when they were given a technical witness a thirty six witness to address all the technical issues including both infringement and invalidity they didn't ask any of the relevant questions they didn't ask a single question that tried to get at the point of whether or not there actually was a difference between the accused software and the prior art software and i thought one of the bases for fees here was the the the finding that it was improper  request under fifty six d for more information on the ground for saying that that was improper or was that he didn't use the information that came back in response to the re fifty six is absolutely one of the four independent grounds if this court finds that any one of those four grounds justified the award of attorney's fees and in particular i think most of the discussion had focused on two eighty five which i think clearly does provide proper grounds for the attorney deal more than any one of those can independently jeopardize the firm and tell me if this is an incorrect way of thinking about the framework here it may well be set the district court could have found objective facelessness of the claim construction of an exceptional case on that basis the district or didn't say that it was an independent basis but even if the disk were than there would still be the question under heavily relies on his view of the insufficiency of the preceding investigation so the reason that at least i started with the rule thirty seven matter and that the questions about the precision investigation is that they want perhaps not determinative they seem to have been a central part of the overall assessment of whether to award fees and if so how much regardless of the particular source of the four possible sources of such so first to respond to to that part i think it's pretty clear and this is that his opinion on page eighty nine that he was pointing out that there are four separate grounds here for free unfair were grounds here is more confusing helpful there are four separate legal sources of authority the grounds for imposing fees and deciding how much under each of those sources is this mix of findings about objective basis of the claim from day one the rule fifty six the requests and repeatedly the finding that there was no adequate pre suit investigation so it seems to me if there is a problem with the finding of no adequate preceding that's the geishas because all of the relevant evidence of the investigation was excluded that seems to me to differentiates that there's within that even two separate independent reasons that the fees would be appropriate and to eighty five first he goes through the objective basis which we all know now with even more rigorous standards than was necessary in order to through is litigation misconduct and here he's got a litany every and i think that i p c referred to it as twelve which is probably a good way to count it and there's even more that he didn't include that show that this case was litigated unreasonably and those have nothing to do it all with the pre filing investigation so to get your point of changing i think that is independent grounds for litigation this conduct can again justify affirming that without getting into whether or not it was i believe that that's the best reading of the of the opinion yes but to get back to the litigation misconduct that judge the typically found that i did see did not review the discovery their c v that two years into the case they filed the same claim charts the provide defendants before the case was filed they pursued no evidence of discovery on direct infringers they were invasive and misrepresented the prior art summary judgment they urged several times to have a matter to have a special master appointed and then when the judge took that request and did so they vehemently opposed it and as i said there was pretty substantial thirty thousand dollars compared to paying for mr nairobi's of it's probably not all that expensive but then there's additional pronounce for the litigation the conduct twenty at every opportunity i b t required unnecessary briefing by toshiba in this case they filed suit and named the wrong parties they wouldn't dismiss them we had to brief it they twice urged the court to find it so she was not the prevailing party here despite very clear a precedent from this court on exactly the same grounds that they were they required another sorry motion practice to unseal the court's decision on attorney fees despite the fact several mean confers they were unable to point to anything that was confidential so certainly all of this behavior and particularly when you view that in light of the low merits of this case we think that that again justifies the district  you can you address the contention and i don't remember whether it was in the red briefs maybe maybe it was that some of the material attached to the lawyer say asking questions thing here's a question we need to know the answer to we don't know all of that is in is in the exhibit and when you look at that it shows that these are attorneys doing or how would those she says that those would actually have been relevant in merits gradation perhaps admissible perhaps something like that is that one i don't believe they would have been they are relevant only to show that there was a complete and substantive pre filing investigation undertaken but the merits litigation we have no ruling on that at all there's no ruling on claim construction so we don't know whether but even asked several if you look at each of the basis we find that none of them make sense because he didn't perform the analysis on her own unless i'm asking for example joined in several against both independent grounds for concluding that their it was ok to award to eighty five c your honor respectfully no because you have to look at the totality of the circumstances and when you look at the totality of the circumstances there was no of all of the evidence about the preceding this is i think if you look at this court's decision and beyond net two and medtronic versus brain lab it shows that you have to consider the totality of the circumstances and even if you were to agree with those findings which when they are considered in lieu of the fact they're not correct in the totality of the circumstances they do not rise to the level of fees i see that i and my time is run out  your honour's your time is up thank you this case should be reversed now is a nice brief summ