penalty available to the district court judge he was deprived of the opportunity to defend himself on the merits of this case and that water of the fault that the court entered just you know willy nilly decided to do this there was quite a factual record in front of them well your honor the record primarily consisted of testimony that mr tar water gave at a brief evidentiary hearing at which at which point in time i think it's important to establish and to note that mr tar water was a very unsophisticated lit got after yes because the stolen laptops one of which the evidence in the record established be long to him the other of which it it appears belong to road runner but that isn't even clear well whe on that point but i think the critical issue is the laptops that mr tar water had while he was still in roadrunners employment were stolen yes that's a bad fact it's a bad visual on this case and i believe that it did unduly prejudiced the district judge against mr karr water or perhaps he was correct to be prejudiced but in any event the computers that he owned at the time or that he had at the time that he worked for road runner were stolen before the case was filed and i think and yes there were discussions that were even alluded to had he by the time they were before they were stolen he had been alerted by counsel for the other side not to you know preserve basically to preserve all you know trying to communications well he was he was requested to return one of the computers for the purpose of counsel for ro one runner making an image of forensic image of it and that became the subject of a dialogue between the attorney he retained and roadrunners counsel about how they would how they could agree upon terms for this image and in fact in this is in the record there is a letter from mr tarr waters attorney predates the filing of the litigation in which she offered to return outright return one of the computers to roadrunner and to commission a forensic image of the other the one that mr tar water believed he owned so roadrunners information if there was any could be located found it would be rich it would be return them for that matter that could take place the computers that the laptops were stored well that was not going to take place because counsel for roadrunner rejected that offer and it was the day that he rejected counsel rejected that offer which ultimately i will point out is what happened with the laptop that ultimately mr tarr water purchase that was part of the case that was the subject of discussion in the case but but that wasn't going to take place because it was rejected and it was rejected for reasons that i submit are rather flimsy because in the letter that counsel wrote in this is in the record the letter that counsel for talking for road been a wrote he said we want to read that because it involves the destruction of evidence which was simply not true that offer was you can take we will have a third party upon whom we agree do a forensic image of the computer any of your information that is on there will be return to you and it will be deleted from the computer so the point of that exercise and counsels mind i'm sure was you're worried about your confidential information falling into the wrong hands or mr power water continuing to access it this is our proposal for dealing with that unfortunately that offer was rejected had it been accepted i don't think we'd be here today but it was rejected and unfortunately the day after the original what we call the original laptops were stolen ok so then he gets a replacement laptop that's right then he gets there were plate well actually he purchased a laptop for his wife in july of that year about a month before he left roadrunner and december of that year after he left roadrunner and took the job with custom his new employer he purchased a replacement for himself so that laptop was the one that became the focal point for the litigation but what is what is interesting about the facts is that road banner filed its lawsuit in october of two thousand and ten two months after mr tar water let it waited until april of two thousand and eleven to commence any discovery testimony to attempt to preserve evidence so what do we do with that finding ok yes you're right the court did make that finding and that finding i submit was clearly erroneous because here was the here was the evidence to back that  it and by the way don't use it because we can turn that by using it you're going to be spoliation evidence he was never given that direction they waited until april of two thousand and eleven six months before they even took discovery and it was and eleven before their motion to compel came before the magistrate judge who found by the way that their request was vastly overbroad it was overreaching he said you're not going to go into mr tarr water devices and take a wholesale image you're not going to look at them and discover anything you want you can't go on a fishing expedition but what i will allow is for a forensic expert to be appointed to be agreed upon and you to the parties agree upon a protocol whereby only relevant evidence will be discovered and the result of that of course was that there was no relevant evidence if you see the report which is in the record there was really nothing on the the customers that roadrunner identified the documents that they said comprised their trade secrets there was nothing so apparently maybe some of that information into this kid on the original computers that were stolen we don't know but the point is this laptop the new laptops were never the subject of a preservation he said to the extent that you weren't under a preservation demand before i'm placing you under an order now this is july of two thousand and eleven pertaining to the new replacement laptops he said i'm placing you under an order to preserve everything all of your u s b devices your cd braun's your computers your cellphone whatever and he concluded with the statement anything else turns up missing there is going to be problems and one of the ways in which this case went wrong i believe in the district court was roadrunner parlayed that statement in two essentially and they tried to couch it as an order by the magistrate judge to don't delete anything preserve everything don't alter anything that nobody ever told mr tar water don't help create your computers and essentially that's what this was about the motion that they brought before the district court sought to sanction him his report he said and he talked a great link in his report probably eighty percent of it was devoted to how items can be deleted or altered given the hues of the computer over time the deep ra automated system processes software updates yet a whole new list of things that could cause that to happen but ultimately he complained he concluded that most if not all of the data that was deleted was the result of automated system processes he never accused mr tar water i'm intentionally doing anything to spoil eate evidence his report was focused upon the fact that and he testified to this at the hearing he testified that if you use your computer if you turn it off and on these things are going to happen and that can't be avoided and cross examination i think he was asked do you have a computer yes i do so this these kinds of things happen on your computer as well right and he admitted that was true so at the end of the day the forensic expert really didn't add very much and when he was questioned at the evidence you're hearing i found it very interesting that he was never asked a question about in his report he did talk about deletions but he was never asked about the questions he was asked all had to do with these automated processes and and the fact that if you lawyer cross examining to bring out all the sex is not there and that was not done and i was i was not the trial attorney at that time but i'm no problem you just you know the record is one of those and there was an opportunity to cross and did not happen right right right and that's one of the problems with the with the record that we have in this three some of our evidentiary hearing a lot of things were never established there are just huge gaps here and one of the most troubling things about this case to me is there was no showing of any prejudice to roadrunner by the way as a result of whatever was deleted or lost or altered because we don't know what it was you know i want to clarify one thing i want to try to stand the facts properly but you said that i guess before he left roadrunner he had bought his wife a new laptop that's correct that right that's correct yes was there any evidence at all that he moved down from his the to the computers that he lost to his wife's laptop none at all none and in fact that was one of the task of the forensic expert according to the protocol upon which the parties agreed and the magistr judge entered as an order he was to search for evidence that external devices had been attached to the computer so as to transfer data and apparently his report is silent on that so i take it he found no such evidence because in other respects it is very thorough i mean testing aside the expert it saw there's testimony and your client testified that he never made any efforts to preserve allman sat it's a strict order to preserve data so even if we you know take look at the evidence in the light most favorable to you with regard to the deletion an automated alterations and all that that would be the subject of expert issues he didn't preserve data at this in the clear on that he didn't have a forensic image done of the of the computer which probably in hindsight was the thing that should have been done and it should have been done early on but that never happened and in fact until he was deposed in the case a year over year after it was filed he didn't really have an understanding of how that worked yes he was represented by counsel but he didn't really understand what a forensic image involved he was so on school until this case of course about these issues that he thought that if you used his computer anything that was ever put on there would always be there which i think is kind of a lay person's understanding certainly the understanding of someone who worked himself up from being a dock worker at a shipping company to being vice president of sales he really did not understand that but he was very well educated at his deposition by counsel for road runner who repeatedly told him that just operating the computer just turning it off and on can cause data to be corrupted so i think yes the testimony that he gave at the time of the evidentiary hearing has to be placed in light of what happened less than a week before because six days before that hearing was noticed he was deposed in the case and he was told that you know you've been spoiling evidence in fact it appeared from the deposition that this was the case that counsel for road runner intended to make all along and i'll read from page one twenty four of volume two of the excerpts of record counsel questioning mr tar water says the key is what we wanted  see what data and documents were on those computers at a certain point in time we can't recover them now because you used the computers because you of course used to its computer i mean why buy it in year it putting aside from it's not whether or not it should even apply here because there's a certain test you have to go through to to make that determination but let's assume that it should apply here one of the the factors that the courts did to consider and deciding whether or not to impose sanctions under that rule is the following this is only upon a finding that the party acted with the intent to deprive another absolutely not he did say the conduct was willful but it appears to me from reading his order what he meant by well was deliberate in terms of you deliberately continued to operate the called first of all going to put tar water in order right now to preserve if he should have and i'm sure there's an implicit order to preserve but now he's under a strict order to preserve all data all storage preserve it doesn't say don't you a second somebody explain to him that if you use that computer he would be effectively the leading information he was told your justice that you know i'm not a justice i'm a that's exactly what we're interested in not is there information this computer now what was there anything in the past because it could have moved or been transferred or printed or something else mr harwood or clearly had already on the original computers the first two computers what was on the said i can't tell the court what was on his computer and he did in the past that's the punch line from the expert's report now i'm reading from the expert written report paragraph eighteen is a table showing two lesions from the two replacement laptops and what the expert says paragraph eighteen is that for the john computer mr try what is computer from nine eleven eleven through ten nine eleven and the computer was submitted for imaging on ten nine eleven so this is after deleted that cannot be recovered in my experience it is unlikely that a typical user does not have a single deleted file in the recycle bin this typically indicates that the that the user deleted files by a method that bypasses the recycle bin then paragraph twenty twenty one i read i quote none of these were for files in user john's home directory further reinforcing the conclusion that any file deletions were done in a met in a manner that bypassed the recycle bin so what we have is an about we're trying to negotiate a protective order and we said in the april eleventh two thousand and eleven letter we wanted forensically image inspect all of john's electronics stores devices so the idea that we never said anything about other devices isn't true we've been in  communication trying to negotiate a protocol as reflecting that long letter about a protective order but so it was it was spoliation an ongoing basis might of ok you know i hope you're right there but we'll go back to that the question in the us does all this you've been reciting to us indicate specific deletion so items are deletions merely by me to turning on the computer specifically deleted rather than deletion by turning on the computer turning on the computer what actually occurred here in the it's one thing that we frankly i don't appreciate that he's not and doesn't have some sophistication about computers but that would mean he has a sophistication and what was your understanding of what preserved that and predecessor counsel waived privilege and asked his own question his own point question on the record in open court what did my office tell you what preserved because mr tar water was saying i don't preserve i don't know preserve means and mr tarr wonders what what mr karr water testified on direct examination from his own attorney waiving privilege was did my office tell you not to delete any files trotter said yes and that was despised by the trial court that this was intentional all this time you've been deleting as judge winter judge would observe he's been told over and over again by us don't leave anything don't operate the computer you know be spoiling  points but you're you're you're losing that you've been told over and over again let down you've been told over and over again not to leave any files by us and but he kept waiting and admitted in his deposition and then again in an open court and the operation of a computer over time render the file and recover that song but not all of those delusions were the i hit the delete button so he kept saying i don't you know i didn't know what what preserve meant i didn't know what preserving data meant as the judge asked him and his own lawyer asked in my direct examination what it was our office tell you he said don't delete any files that was mr charles explanation so i've got up to the date he turned over the replacement laptops he and his wife to delete it files even after it is even after we told him don't delete even after his lawyer told him what preserve said it's not just or practical to apply a new rule because this case started in brief here are not only the case but well who should make the determination as to whether it's just a practicable to apply the new rules in the circuit or the district court in the first in a district court can't because the case was over for years before right now i understand that so we remained at the district court to determine whether it's just in practice mall or do we reach that issue in the first and i would i would say i think speaks for itself the case has been over for years before a new rule that doesn't mean the rule should apply this would be i would submit the polar opposite of just impracticable to apply to a new rule in all cases but coming back to the way you make you got to how much to get sanction for the i think it ruling especially in the ruling on default and especially on the ruling on the motion for a new trial judge guilford made i think it's nine pages of findings well for us no i understand that but but i understand the pla amount of sanctions imposed the consequence to him and the lack of a specific finding of intent i'm wondering if we should send it back to the district courts for so that he can make a determination make the first call us the weather's just  order the judge says because the evidence including tarzan testimony is that was the dark water willfully spoiled happens now well for something different than intentional it's like a not nomic action the if you combine one history of the in their motion for reconsideration judge gopher talked about a fake theft even at the end of this case he was still talking about the problem with the fake stuff if you knew all th the fundamental ability to travel to run its court magistrate judge gives you or you have to preserve data to a nonstandard manner bipes passenger cycle been delete eight hundred two files that renders even the name of the file and recoverable if that's not predecessor counsel over the exact issue of what you what the court understands preservation to mean at the motion one of the later motion hearings attorney jackson tried to say that he had told attorney water only to not do we relevant files and judge go for it stopped him and said that's not with the testimony and then we found the actual testimony where waiving privilege attorney jackson had his client say ok on the issue of damages we said in our complaint we they took clients a b c clients including a b c and the later we say clients customers business relationships as a matter of pleading our standard on that abuse of discretion it's no standard to know this is a straight legal question this is this is this was not an evidentiary ruling with in fact all the evidence on damages for all the clients was admitted i wanted to address a couple of very important considerations i didn't get to talk about earlier one is the concept of prejudice in order to award the harshest sanction available bearing in mind there's a whole panoply of p otential sanctions that could have been awarded for whatever conduct judge guilford found occurred here and he chose the harshest one but the case law on the circuit is very clear that there has to be prejudice to the other party before the harshest sanctions available can be awarded and the burden of leaving a finding on that that you deprived them of their primary evidence but actually it wasn't evidence your honor that's the problem it was just some stuff and i started the starting point analysis is what was spoiled to the extent that a party spoils something that is relevant to a claim or defense or is discoverable or is potentially relevant that is spoliation of course but in this case we my i don't think so your honor i mean i just maybe that was and that might have been in judge gilbert's mind but when i'm saying is the record just does not support that kind of a finding when you have a record where relatively unsophisticated litigant all he did was continue to use his computer and in the normal course of business even under the prior version of rule thirty seven what he did was not sanction the ball because that rule provided that the conduct tied to any  routine good faith operation of a computer over time that results in a loss of data is not sanctionable that's all he did but in any event the burden of proving prejudice rested with programmer and that means they had to show some nexus the case is all talk about the concept there has to be a nexus between the conduct that is being sanctioned and the issues in the case in this case there was no demonstration of any color there was any relationship at all and therefore they simply did not meet their burden of showing a prejudice or a nexus i want to talk just briefly about the issue of lesser sanctions because the district judge really good and  over your time though i'm sorry you're over your time over my time all right thank you thank you very much thank you mater submitted