to grant this court's judgment or relief from this course judgment whether hernandez violator discovery obligations by providing opposing counsel was an authorization to obtain his medical records rather than the records themselves jurisdictional issue is straightforward and fully briefed the less the court has questions about the issue i would like to focus on the limited time here on the remaining two issues if you don't waive anything that in your brief whether providing an authorization for release of protect at identifying the relevant health care providers relieves a party of the burden of producing record it's controlled by the health care providers and also whether the defendant was prevented from fully and fairly presenting its case as contemplated by sixty three when access to the pertinent medical records prior to the trial and could obtain those documents by exercising greater diligence as the medical records in early two thousand and fifteen results counsel submitted written discovery request hernandez requesting also billion medical records from june two thousand and thirteen in response my office provided only documents in our possession and one page doctor's release note from the emergency room we also objected to the production of the additional documents following this we did not have the records in our possession we don't have any record saying it was a having we didn't have any your honor we had at the time was what we provided an arch room i'm sorry the document from the emergency room  shown in the interim before the release was provided on march second one of the defendants trial counsel emailed me directly and said in part medical release thank you we need to get that as so we can obtain the records this is because results counsel knew that the one page doctor's note that had been provided did not constitute a full set of medical records and plainly expressed interest to obtain the records with the aid of the release that email can be found in the record seventy one some time later my office requested the medical records in question and pick them up on or about may thirteenth two thousand and fifteen approximately two weeks before trial i believe my office something to fax the documents to opposing counsel as a courtesy but the facts failed to send in the reason i say i believe is because this issue came up two years after the date in question and from my review we found a failed set facts and from two days after that date to trial counsel that's the best information and i am nevertheless opposing counsel was well aware of the location of the medical records and question and having been provided with a medical  lease they prepared and requested hernandez met his obligation pursuant to rule thirty four he satisfied his discovery obligations by getting the offender just as much access to this records as fernandez had both the trial court and result seemingly have taken the position that order to comply with will thirty four a party must provide physical copies of documents in question to the requesting party rule thirty four does not require a party to provide copies of documents the rule permits the requesting party to inspect a copy test or sample the requested documents or things providing an authorization to obtain copies of medical records is the routine way in which lawyers comply with rule thirty four with rule thirty four rest and no circuit court precedent requires awards to anything more and jackson versus united states or united artists theatres from the district in nevada in two thousand and eleven the trial court took a very similar situation and came to a drastically different result where party has provided a medical release in lieu of providing physical copies of records the court found nothing in these rules prohibits a plaintiff from voluntarily providing in a defendant from accepting a signed medical authorization so the offended can obtain the plaintiff's medical records and bills directly from the providers the court goes on to say a defendant may prefer this method to make sure that it obtains complete medical records importantly results mischaracterizes this ruling in their brief the case is almost identical and that plaintiff did not have the records when the discovery request was made provided in medical records authorization later receive some records and did not supplement them the court still found that the plaintiff and met their discovery obligations by tendering the medical release the records were not in her aaron hernandez's possession at the time of discovery request the initial responses or when the medical release was provided after providing the release hernandez was provided access to the documents in question and had no duty to supplement the discovery the district court conclusion to the contrary is unsupported by the text of rule thirty four as a matter of law as to the third issue regardless of how the just record viewed hernandez compliance with the discovery obligations it was aired a grant the rule sixty three motion when the opposing party could have discovered the information in the medical records with a more focused effort have uncovered the evidence prior to trial with a more focused effort the opposing parties actions cannot be said to foreclose the possibility that the party could have fully and fairly presented its case the court further distinguishes this case from mercier the case that results most heavily relies on obtained the records before trial its failure to show up for closes a claim that it was a private opportunity fully and fairly present its case by that alleged discovery violation in open court the trial court judge stated that offended could have gotten the records and i can assure you ninety percent of lawyers would have gotten the records the judge was correct but whether or not most lawyers would have used the red release the fact the defendant could easily have used it demonstrates the defendant had full and fair opportunity to obtain the discovery that now says was required present  was the records reflected he went for back pain and a headache so it did in fact reflect that he went for both back pain and headache estrada i've the factual issues we take great issue with the trial court's findings the the records i believe clearly indicate that the my client was treated for back pain as he claimed but  us produced such documents in his vishesh in custody and control at the time the discovery was responded to on a police brief age six seemingly accepting the court be vague a wholesale line of reasoning that party has no control over medical records held by a third party however the trial court premises his argument here on the notion that i deceived opposing counsel personally into complacency when the courts when in the courts words he without qualification produced a letter from the emergency room physician as being the record in his client's characterising a troll rated plaited plaintiff's july fifteenth emergency room is it now page thirty nine of the order it should have been clear from my objection that the only producing i was only producing records in my possession on the assumption that i had no duty to order records that my own expense that i had not obtained my response was not misleading and i cooperated fully when i was asked to take my client's signature on a release for any records that were not in under sixty six it didn't make it clear that it thought that relief should be granted in the alternative to sixty three courts have held repeatedly that a party cannot simply use sixty six to assert a claim that could properly be brought under another provision and helsing vers s transportation this circuit court in two thousand and five held that the reason for relief set forth under sixty six cannot be the reason for relief sought under section six but another section of sixty the court order therefore should be reversed in the matter remanded for the damages determination that this court ordered on the first  court this case involves with the district judge called one of the two worst cases of discovery misconduct that he has seen his many years on the federal bench this report found the plaintiff mr hernandez gave quote intentionally false testimony regarding the document for the emergency room shouted back pain and headache what he said was misleading i would say it did doctor of emergency room show that his chief complaint there was a headache frontal that it was came to light he first said yes i have migraines and sometimes i get treated like it's and then he said two months later the rule sixty hearing no no i haven't had nightmares i don't get money things which is what ultimately led the district judge in this case to additional exhibits some of which related to request nineteen so she was led to believe whatever reason she took the position that he was producing these things and it would be necessary to use the authorization of time place and they're also an ongoing duty to case rule sixty the relief was granted because the defendant there did not turn over a witness statement that the council knew about and he wanted trial and then later the plaintiff found out about the witness statement and the defendant excuse was well you could have found the information somewhere else because the statement was made at the scene of the accident in question you could have going to pose that person you could have subpoenaed that information you'd have to get from us to get in the sixth circuit didn't have any of that said no it wasn't on him to do a more thorough investigation to uncover your deception it was on you to not be deceptive you knew about this and unless you put your witness up your client to continue testifying to something that you had reason to believe this falls  there actually raised the issue it's morning perjury was concerned about the six circuit doesn't directly address that that mentions it so it was i think it is an important rejoinder to their argument that any time you can get something from someone else through a subpoena then the other posture of the case in the district court shergar it would be remanded the district court at that point there would need to be a trial on the issues relating to the convalescence provision of the statute because that was the issue on which this court reason maybe a third appeal this case was never going to go and it is possible that there could be could be a third feel that's right but i think that is that is that oscar and if if the court share reversed the release then it would be remanded for proceeding on damages events happened we were about to have a damages trial so we would be back there because this court would reverse the district court's order vacating the fist circuit judgments of the circuit judge be in place and then we would be back to dams whereas if this court has been well covered today about the release and about how you could have gotten the records and you you've acknowledged it with benefit of hindsight that probably would have been done so given that they had some reason it i don't think it's frivolous argument maybe winner or loser but they had some reason to think that the release was enough it's hard for me to see how it quite reaches th cause of the underlying deception and dishonesty of mr hernandez throughout the case and giving false testimony and because the district court having the opportunity to gauge the credibility of witnesses at a live evidence or hearing where all these people  i think something needs to be clarified particularly with the question that was asked regarding how this case would be dealt with because that there were two grounds that this case was argued under  if you look back which i don't expect you look in depth suzi entire record but you would find that going into even the first appeal the primary argument made was that mr hernandez reported within the proper timing provision under forty three twelve a one and two the secondary argument was that the convalescence provision when we came to appeal the vast majority of the briefing in the first appeal related to the first provision i believe that the position was acceptable so of course opposing counsel would prefer if this case goes back that they only look at the convalescence provision where they now think they have found a stronger foundation but mr hernandez i think has a very strong addressed that issue and i guess that's not really before us i was just when i asked the question i was just trying to be sure we understood procedural posture but i seems to me we would either refer affirm or reverse the order that judgment right is already and not go into i appreciate your if you're lying all that to us but i don't know it's up to the in the other the other part of that is though that this is why the medical where is never a big issue particularly these medical records were never made into a big issue because that wasn't the primary argument that the trial counsel were having at the time we were concerned primarily i was concerned at least perhaps out of my inexperience with the argument on the timing provision t convalescence provision was a completely separate or completely secondary argument which is why we didn't get the medical records earlier it was not to deceive the court or anyone else when i got the records i really don't have a great memory of it of even looking at the records but they had they said that he was treated for back pain he was they supported the position that he was treated for that pain the fact that there was another diagnosis another it's just important to note in context that that was the case and i should also note just in that in point of that context is that we asked for a continuance for more time for  discovery opposing counsel did not state they did not oppose that continuance they they're not agree they felt that they were fully prepared in the case which is why they didn't agree with the continuance this was not a matter of the medical release was fully provided the court has concluded that we had some scheme to defraud if that were the case when opposing counsel came into my office and asked for a copy of medical records do you have these records in your file i was pretty angry because of the way that it went if you read through the deposition but i went and i got the records and said yes here are the records this was not some scheme to the opposing counsel was a very seasoned trial lawyer a partner at a large firm specializing employment law and told numerous federal litigation trials had an associate there was a general counsel working on the case the fact that these folks looked at a one page hand written a doctor's release note and were to think that this was the entirety of a hospital record is beyond belief in my conversations and so he gave them some of the records well there were other records from other treatments but this was the only record from that day another that specific question this was the only record provided and i had conversations with the associate counsel about the medical release because they wanted these records  the only other thing i'd say is that williams v thaler in that case the court specifically looked at a discovery violation and determined that because mr williams had a lexus to the records that