mr know if you're ready questions during his improperly noticed episode in for three independent reasons the district court's order must be reversed first defendants are not give mr evans the reasonable written notice part by rule thirty one second there was no sanctionable discovery every twenty second i understood your opponents say that there isn't anything in the record one way or the other about that i suppose other than mr evans's statement is that so just a personal bond and what do we know about that you thirty argument doesn't depend on whether or not notice actually was received in our view even if one has to make a notice from when it sent the three to four day time period that defendants permitted for the notice to be picked up honor about that but i mean it wouldn't surprise me if it's a few days but i just i'm wondering what we have to hang our hats on here there's no one was through a miracle it'd been received on the same day it was sent to go by what one reads in detective novels the would you be arguing that because giving three days notice was not adequate it wouldn't have counted even if the notice had been received three days before the date of the deposition that is arguing your honor certainly you don't have to i know we don't have to reach that but in your view then how long before the deposition is that deposed party entitle to notice or your answer has to be more than three days and where would we get that and i could easily understandable that three days was are not for deposition that but if the only thing that's going to happen at the deposition is that he's going to be asked his memory then i would think three days should be plenty of time i understand before it can be certain i just want to put one more factual point on the record dr kay just counsel at the deposition at page ten states that he had an extensive conversation with mr evans when he arrived at the prison about why he was here that day and i think that just f have been sufficient to put him on notice of the potential sanction for failing to comply with orders because the scheduling order says that dismissed or if you don't comply with the various orders or potential sanction assumes the district court has discretion but evidence asserted that he did not receive notice until the day after the date scheduled for the deposition i couldn't find anywhere where the district judge address that and i missed something no matter whether it should business litigation prison litigation or anything else is not adequate notice if that is in fact the case i'm just saying in the general notice a day later it isn't correct now that's why it's a problem the district judge doesn't say anything about it and that's even before we get to the language of thirty seven and thirty seven d neither of which seems to be a good fit for what happened here deposition he didn't appear in any meaningful way that's not what the rule says though this is a rule about an i me and it happens as you probably know of people who don't show up and that's a problem when they don't show up and so will thirty seventy gives the district court tool in newman her own deposition the case should be dismissed her failure to prosecute and i frankly straightforward proposition that if you are the plaintiff and you don't cooperate in your own deposition it plaintiff being one hundred not i don't know but a rational person would want to organize his or her thoughts before a deposition since the case is going to depend heavily on those answers and should we don't let pla opportunity to review any documents that were available in the recruiting his pleadings his medical records and other jury had you were right on the spot and the medical documents about the treatment were i would also like i take it the answer is yes the documents were i want to be a subject of the deposition the underlying right to be even more important to be able to review them before hand at no point to the district court has did mr evans ever argue that he did not want to participate in his deposition because he did not have time to period i think these other things sort of follow from it what bothers me about thirty seven b argument is that i've always understood the structure of thirty seven you give people a chance basically first by going to the district court whether it's a magistrate judge the district judge doesn't matter and obtaining an order compelling the just the discovery in question because sometimes request then you move on to the sanction stage but none of those preliminaries happened here the district judge said oh you're out the window because you're an indigent prisoner therefore that's the only thing i can do i think i believe that  you went right to say that is true and i believe that because the only reason that was offered by the plaintiff for why he could not participate during his discovery deposition was because he had high blood pressure that day he didn't offer any reasonable excuse as to inability to prepare a place the fact that he didn't know that this was a scheduled date for the deposition he said that clearly enough he did indicate that he wasn't the record th transcript suggest that there was a conversation about why he was there but this is a litigant with multiple pro state actions pending before both the northern district and the central district i don't think it is entirely surprising that he may have a question to which case this particular deposition involves on that particular day notice  and i don't think that the record is clear that he did not mean the record the only documentary evidence that we have in this in the record is that the is that the notice was mailed five days before then we have mr evans sworn statement which is competent eviden court would have to make a finding based on that and that alone that there was sufficient notice is that enough for the court thinking that three business days would be sufficient to get notice to a prisoner  or three days from when it's put in the mail i think that three days after and in this case are suggesting that one day after it's put in the mail can be sufficient under certain circumstances so three certainly three days after a notice is put in the mail can be sufficient under the right circumstance