in terms sanction of terminations of the case of a default judgment the second question is whether even assuming that default judgment was appropriate the a l j additionally committed an error when he refused to take evidence on  remedy which is of course a separate proceeding from default so on the first question it is black letter law in the circuit from micron and from genetic tack that before a judge or in a l j for that matter ending sanctions most extreme nuclear sanction of the able the judge essentially needs to show his work there aren't very many areas in appellate law where an appellate court needs to instruct a judge that he or she must show their work but this is what because this is not that's a little difficult in that case given the substantial opinion that was issued here by the a l j and the fact that you only proposed to alternative sanctions both of which would have been extremely lenient and specifically addressed those and considered them judge amount i take your point that this is a law in you but i think the difference between a long opinion and the judge actually showing his work where counted is important if you look at joint appendix one ninety two that's essentially the crux of the judge's conclusion on this point and what he says it is organic chemist conduct has ostensibly deprived out of its ability to pursue its claim ostensibly which is interesting no sanction short of default is available to return the parties to the position in which they would have been but there is a difference between the stadium inclusion explaining the conclusion that what you're mixing up a bunch of different issues here and we can get to the question of whether prejudice had to be shown where there was a bad faith finding but with respect to what the gist of what the a l j said with respect to alternative sanctions you proposed two separate sanctions one of which was this l j supposed to just conjure up no will first of all it's not a menu that it conjures up it's in it's in the governing rule nineteen c f r two temp one three three and yet you ask for anything other than the two sanctions i just outlined we asked specifically for a lesser sanction other than the default judgment and i think that the problem with putting the onus on the party to propose specific sanctions is that that too i would think would cather the l g s discretion admittedly an area in which he has discretion but what he can't do and the reason that many courts including this one repeatedly have reversed judges and a o'jays for just this thing is go all the way to the end of the ratchet without explaining why that doesn't mean judge o'malley that he needed to essentially test each level of sanction or some judges have misunderstood it imposes each level of sanction before he could get to the last one but what it does mean is that he has to ask himself essentially try every key in the lock he does before he gets to that last sanction and the reason is that there are as this court has said again and micron in jenin tech there are important considerations underlying this whole exercise and one of them is that governing principle that before you throw a party out of court you make sure that there is not some other sanction that would suffice to accomplish all of the things that you want to accomplish he did specifically consider your alternative sanction that you wanted to propose a consent order and went into detail about why that was completely unworkable correct i think with respect to the consent order i remember a detailed statement i think it was in a footnote of his decision as to the difference between the consent order that we sought and the sanction that he wished to impose yes well no it's not in a footnote he addresses it in some detail as does the commission but the important point is as they both said if you did not if you accepted the proposition that you could just destroy documents at will and then at the end say oh and wants us to take this consent order then what you've done is basically give everyone an incentive whenever there's a trade secret case to and disposed of hundreds of boxes of documents thousands of pounds of documents and this court reversed the lower court for imposing the dismissal sanction so it it's not i don't think it is the end of the inquiry to say how do we efficiently you know deter future spoliation because you could make that argument in every single others believe in case there has to be another consideration in the consideration that this court looks first to particularly in i t c cases where you've got that rule to ten percent three three is what is the what is the the sanction that is necessary to remedy the harm to the plotless party how do you possibly herman what the scope of the harm is when we have no idea what was in all these destroyed documents i think the way that you determine it is by asking the question that the court explained in micron which is can the party nevertheless prove some element of the case that's the degree of prejudice discussion that you see in micron so the question here in a misappropriation of trade secrets case i would think we could all agree that there could be a significant adverse inference against organic for the misappropriation element of the misappropriation of trade secrets claim in the next question is did dow have evidence available to it that could help improve the predicate to trade secret and the extent to which doubt kept it secret those are two elements of the misappropriation claim that clearly would be unaffected no matter what was in those destroyed records that's the difference on the remedy issue it is black letter law that when default is entered against a party all that establishes is liability and then you next have to look to remedy there are a couple different instances and where that default actually solves the entire those instances are if you have a liquidated damages provision in a contract and you're found defaulted for a breach if you have a liquidated damages provision in the statute where there's a specific or if the complaint asks and this isn't a reference to the commission i think makes and it's free to complain asks for a permanent injunction and you offer no evidence against but here the difference is in all those other cases that we cited you need to establish something to find the remedy and so once you've established liability and we've taken that sanction on liability assuming that it was appropriate you then move to the question of what remedy and we were intitled to submit evidence on that point but i think the way the commission crafted the revenue still ca mean the commission set a twenty five year bar owner but it's pacifically wrote in to its remedy the opportunity to come back and show that in the absence of the use of this trade secret information you would have been able to basically come up to speed it with respect to that industry and so essentially they just sort of reverse the order of doing this if you're right judge malley that it built that into the decision it's the last page of the commission's brief it mentions it i think the reason that it doesn't get more  the commission's brief is that it's rather an empty solution forgetting kimya for two reasons first it shifts the burden of proof proof over what it might have them but more importantly my understanding of that regulation of the commission sites is that it requires new facts or law and if we are according to the commission left to contend in this separate proceeding that which we wanted to contend in this cheating i would imagine the commission might have something to say about that that's why this this  existence of this magic solution to the remedy problem actually isn't that just what happened but the problem really began there were so many destroyed documents that the problem that the problem is they've said it would be impossible to prove a negative when you were the ones in control of the information and you were the ones who destroyed the information no i don't i'm not sure that that is a full assessment of what the commission's argument this point is the commission's argument on the remedy point is first word entitle to do this under thirteen thirty seven g that's clearly not right because that applies to a defendant who doesn't show up and a defendant who doesn't show up doesn't get to argue about where that either because that inside the commission also says in it page fifty seven this had to do also with the will from misconduct at work and i kinda we have already under this part of the argument accepted the idea of the default judgment at the point where we are talking about a remedy that sanction doesn't get to continue to bleed over into remedy if it does we have an independent problem on top of the abuse of discretion problem i already identified which is that the judge didn't explain why a default judgment plus a twenty five year exclusion order w points for first i want to make clear that we're toggling back now to well i don't think that's unrelated but you can try to make that clear if you want but i don't think the two are on the way ok well on the on the default sanction it is it is also black letter law in this court under micron that when you talk about prejudice even assuming that there is bad faith by the way which was found us to one element of the spoliation claim when you talk about prejudice the next question you have to ask is the degree of prejudice and that's why i was making the distinction between what i think we can conceive might be appropriate adverse inference which is misappropriation and the existence of a trade secret and whether it was carefully kept so that on the on the liability  point is where prejudice comes in on the skill to the exclusion prejudice simply has no role for this reason when you get to an exclusion order the question of the i t c considers it is how long would have taken organic kimya to say that the two researchers are not unrelated because even if you're talking about a different thing than prejudice you are talking about a situation in which organic can be destroyed the ability of their prove the absence of prejudice because you don't know what was in the documents that is and say that that is some different from saying that tao can't say can't prove certain things because they don't know what was in those destroyed i don't need to prove the absence of prejudice judge  is not simply the circumstances in my crime we're talking about the violation of a specific order if i admit it's not a court order but it is it is an i d c commission order requiring discovery and i after in the face of those orders that that is that the documents are being destroyed so when you have that and a bad faith finding it's a different type of announce i don't believe it is judge anally and i don't i don't see why it would be a different analysis given the fundamental underpinning of all of these cases which is that no matter whether you are looking at a violation of a court order or inherent authority or for our purposes to ten point three three which contains that and point one six and if the fault case the allegations in the investigation are taken to be true then the commission complied with that war and i don't think that there's any real argument here that the commission complied isn't it true that the commission always separately considers the liability from the remedy ordinarily what happens is the liability is governed getting into the weeds of the statute the liability portion and whether there's a made the first decision it has to have the public interest you know in this case let's be really clear about what organic community trying to argue with respect to remedy it's pushing against all the trade secrets here and saying that these are trade secrets it's saying that if these are trade secrets these would be really recapture almost everything that they've now lost in this case by by trying to press against the trade secrets we have a default judgment that these trade secrets exist that these trade secrets were misappropriated  in the declaration i think maybe in the complaint too but it's also in the declaration that accompanied that was motion for sanctions about competitors or frankly more savvy than organic kenya who haven't been able to figure this stuff out themselves formed a large portion of the factual basis for the twenty five year remedial period as your honor pointed out the commission was well within its rights in choosing a much using a remedy here of twenty five years and hire people who are underpaid to buy all of this and they can demonstrate that they have developed stuff independently were willing to listen and that's exactly what this co founder endorsers and that's perfectly that's perfectly reasonable in light of your response and argument that every other responded to doesn't go about destroying its documents whenever you get close to trade secret risk procreation i have a tiny amount more time if i could just switch from moment to lesser sanctions there's no case in which the amount of discussion provided by the l g a and the commission here was ever found to be inadequate to today's hearing here at the here ok repeatedly asked about lesser sanctions that have any meaning at one one five hundred to one again more about lesser sanctions inherently unequal this is if we don't believe that there's much merit in this argument we've heard stuff about prejudice i don't really understand the role of that here under d c circuit law i don't know whether this court applies its own regional circuit to start by addressing the issue of lesser sanctions the commission did not just address the consent order in a footnote they spent two pages from j thirty two to thirty four fully addressing whether a consent order would be sufficient the commission and the algae also addressed the issue of whether a lesser sanction such as pres not being a lot of test i would be sufficiently clearly is not given the fact it is quite six hundred thousand documents from his computer given the fact that he was the head of r and d and the points we put for confidential on page nine in ten of our brief there was a statement made by counsel that other elements of the trade secret claim about would have been unaffected that all that would have been found on the laptop was docked with supporting misappropriation that argument was rejected by both the a l j and the commission they both found that the laptop could have unless they would have had information going to all of the elements of doubts claims for example at page a one one five zero nine to five ten which is transcript pages four hundred to four zero one dale j addressed this issue at the hearing and said well document could have had they went through it with a hypothetical document and the other side's counsel agreed they didn't dispute that they couldn't rebut that all the commission addressed the same issue at page eight thirty five to thirty six they said in an r n was made during the commission briefing that perhaps the evidence were the only one the one element and they were checked at that explicitly they said that there on j a thirty six they said that the information there could have gone to secret recipe and then the present laptop would have gone directly to the point that no what's in the public domain would not allow you to get out trade secrets it was crucial evidence dr pres was the key player in this was an intentional destruction of the evidence of the key player in the case do you agree with me that even if that's a challenge a had decided that instead of entering the fall of judgment you should just enter all kinds of  discussed if the computer would have lightly had something on its going all four elements are claim that you have an adverse inference on one two three four and the result is default judgment which is what exactly what the l j was saying and the commission was saying when they said well your four of the elements which is the same as a default judgment and then there was a counsel read a portion from j one ninety two about that this is only two pages and was reading from a sentence that actually starts with the words as exhaustively discussed supra the l j said i'm doing this because what i've just said for the prior ninety nine pages he spent and those pages fifteen pages alone organics bad faith that's j one sixty three one seventy nine thirteen pages on the relevancy of the story documents in the project to doubt j one seventy nine one ninety two the commission at j thirty four thirty six went through the same analysis and they both concluded that we made possible concrete suggestions going to all of our trade secrets the claims elements are claiming so the result should be the same or whether or not you say we're limited to remedy the prejudice is a predecessor that went off for the elements so therefore it would be default judgment but of course that shouldn't be the result and you could only look at so they went in they looked at the document with a forensic tool didn't like what they saw so they did something to delete it looked again with another forensic tool still didn't like it and ran another see clear program it's called to wipe it out and then what happens the next time adverse inference on one element now i would like to address the issue of the remedy honors we've put in ample proof supporting the twenty five year exclusion order we have an expert who went in and the commission's instructions to both parties is very clear they said don't come and argue about whether there's trade secrets let us know what the exclusion or should be assuming that the trade secrets are found and that's part of the question they presented and our expert came in and several based on the fact the straights you could see here would take fifteen to twenty five years and they don't dispute that the evidence supports it twenty five years or what they're saying is that they should have been allowed to come in and argue there were no trade secrets and it really makes no sense because if there's a default judgment it's mostly the same as if we want on the merits and if we were found they're valid you can't get to them you can't have your expert come in that and go through paragraph after paragraph which is what he did saying well this isn't a trade secret that's not a trade secret and that's not a trade secret and therefore the exclusion order should be zero for two years and the the public and would be difficult to design around these all go to the merits of a drug addict came his way by default so there might be an issue in some other case about whether it's some of the fault if you get to put in some evidence or not but here you need to resolve it because they didn't put in the right evidence they put in and here you had evidence and i can get to that last point ranging from two to twenty five years about the appropriateness of the scope of the exclusion order and the a l j again went to the very end of the l interestingly what mr rosenzweig said also was we have been a judge believer here as part of his justification for the remedy but again that introduces a comment that i made earlier which is that to the extent that sanction is infecting the remedy that is completely inappropriate what the court should what the l j should have committed is for organic chem you to submit evidence on the remedy and on that last article but it's it's not i mean that had been stolen because that's what the default judgment says that that's where you start with respect to considering the remedy correct that's correct most both mr nimrod and mr rosenzweig unfortunately have misapprehended  remedies argument remedies argument and you can see this a joint appendix thirteen for thirty six through fifty six of one thousand pages of argument titled the length of the exclusion order should not exceed the time it would take to independently develop the said something very curious right after he said organic can get is just saying these are trade secrets he then went on to do something very helpful to you which is that he articulated all of the things that don't matter for the scope of the remedy he said to the trade secrets exist yes or no did keep control of them yes or no were they missed misappropriated yes or no all of those things we admit are off the table when it comes to the scope of the remedy what's on the table is how long it would have taken us to develop those things in the absence of the misappropriation and that's exactly the evidence that this a l j did not permit us to bring in that is the deficiency not that we were trying to retry the whole case we were not we were asking particularly at those twenty pages let us