violate an unambiguous command in the preliminary injunction because he did not take the initial step to contact the rebbe who employee judge hughes didn't apply that crucial initial step limitation all because he has encountered this court can reverse without having to even wade into the proper interpretation of paragraph four now mr bob goes entire response of he could have disregarded mr d s this testimony if there was some controverted evidence on the other side that he could have chosen to credit but what the judge hughes did instead is disregard the as this testimony because he thought it was legally irrelevant under his misunderstanding of paragraph or to cover any and all discussions of employment with her by the lawyer and this court's case law is very clear that a point the burden of proof cannot carry its burden or create a fact issue simply by asking the court to disregard underbody testimony that's a favorable to it and in fact this court as usual life in clear and convincing evidence in fact the situation is very similar to what happened in the travel those contempt case that the parties cite although not on this specific point and if the court loves it page six  of the travel post contempt case in that case the defended produce and rebut it testimony showing that he did not violate the order this case was multiple dependents the movement argued quote the district court was free to disbelieve or discredit this testimony and quote this court responded quote this believe of a witness's testimony is not sufficient to carry the plaintiff burden or support the district court's finding to the contrary the plaintiff must still prove the violation very clear in convincing evidence and so that's the situation that we have here we have been rebutted testimony that roboto has a nd argument regarding the d a s testimony and our argument is that mr de meter still violated the preliminary injunction because it was another bin mar employee that raised the prospect of employment with mr pio but that runs directly into the language of the preliminary injunction itself which is a page for fifteen in the record and there on that page the preliminary injunction working together here they were dating back had no idea that the other was having a conversation so because someone that was bound by the delimiter injunction did not make the initial contact to discuss employment  was free to have those women discussions with regard to employee so again just looking at the as a counter this court can reverse without having to wade into the interpretation of paragraph before because mr demitra didn't violate even those reading a paragraph or now there's a nd reason that the court should reverse and that is that the meter did not violate paragraph four because the initial step connecticut district court considered that it imposes a much narrower limitation and instead the district court and could it apply the limitation only when the meter as opposed to some other person from discussing employment after revive go avoided runs into a minute trade show it's at the bare minimum ambiguous that mr dimitri could have continued to have employment discussion and remember that that's the principle that lives in conspiracy or orders in contempt cases as this court said in the test master's case in order that vaguely or ambiguously requires the party to perform or abstain from certain conduct does not qualify for contempt now for survival has a different reading of paragraph or we've already touched on that provide those reading is that the major is prohibited from taking the initial step to communicate about bin marking point but that interpretation has problems the st is that it's relying on what is called the serious ball of fire cannon to read the phrase to work or been mar to apply it back to the phrase initial step to contact but as we point out in our brief the default interpretive rule of law is when you have a series followed by reading renders certain terms the purview of bravado would read the term contact initial step to contact to mean initial step to communicate about been marring pointed but that would make contact exactly the same thing as initial step to the listed that's contrary to the plain language of the preliminary injunction to pull the area junction recognizes that there will be contacts that  current employees of a vogl why would the injunction be that broad contact them to see what they're doing that summer contact them to see if thing go up supper and discuss employment all why would that be an injunction well it's not any contact it's from taking the initial step to contact so it has to be some bullish no you decide you want to go out to dinner with an old friend of the company you make a new step to contact us in violation of the injunction i agree that that is a very broad term but by the same token it's a very broad her with respect to if somebody else takes that type of initial step and i think it's helpful in this context also broadness to st if you'd limited by employment w broad limitation it's a very broad provision in which we talk about the harnett case from the st circuit where the court says the initial step does not have to correspond to solicitation it could be of initial step just to see how he's free to discuss employment with that person but i believe in maybe i if i explain a bit more about how we view that provision it might help answer your question a little bit someone not not from the perspective of what is he able to do in making an affirmative outreach which is what your question was but think about it in terms of mr dimitri contacted by someone or run into by of the various carriers of construction before they decide what their conduct is under the principles of contempt we give that we give that benefit of the doubt to the alleged contempt or is what you're getting at st the court has to construe what paragraph or means we argue paragraphs or meanings if someone else makes the initial step to contact  cause us to prevail are undisputed under our reading a paragraph or mr with bio says he just bumped into mr dimitri under our reading a paragraph or that's the initial contact but even more clearly than that mr diaz testifies under a budget that he's the st one to bring up employment with been marc not mr dimitri so those facts are undisputed on the record the factual findings that judge hughes made is what happened at the end of the day after the trade show when they're having drinks or dinner in of course we're bound to accept those but that doesn't get you anywhere unless you st reject our interpretation of the district courts to police the litigation and ensure that their injunctions are treated as something more than mere suggestions the district courts must have the flexibility to vindicate their authority and impose rational remedies when they determine that it or has violated injunction this case is also about order in the nd sense making sure that contempt proceedings are conducted in an orderly fashion including i'm certain of any objections to proceed in tempe proceedings should not be a dry the district court's finding that dimitri violated the preliminary injunction is reasonably to interpret it is not clearly erroneous nd the district court did not commit plain error because it's not provided to me trick with additional criminal procedural protections mr street was discussing what is the reasonable interpretation of the injunction and that's what this court's task is to do is to give the injunction a reasonable or fair interpretation not a hyper literal or strict  to some extent waive the right to make these challenges when when is this issue should or should this issue st have been raised in and it wasn't done so now where where when you complaining about sort of procedural protections when you're in on the motion for show and for contempt was well let me ask you about that i mean i was trying to i was trying to wait until you did i'm in order but if his criminal in no ways criminal which you know triggers other things so why is it turning oh well he asked of protectionism he wants this assuming it morphed from civil to criminal who was in the nature of the proceeding being criminal trigger to ask something of the you you didn't get into this civil versus criminal distinction and i have to say i'm not exactly i don't exactly understand the significance of it here can you talk a little about that honest question about civil versus criminal contempt now let me st i guess turn to the waiver issue and then turn to what is the significance of the settlers as criminal contempt and just to be clear about what's still at issue  take because there was some reference to that they were they were for sanctions imposed they were attorneys fees there were there was a fifty thousand dollars flat non vertical five there was a record keeping requirement and there was an extension of the injunction for three months now the injunction extension has expired although the judge hughes let it extend for seven months because you refused to set an end date on the bill merrion junction  recordkeeping requirement itself has expired but judge hughes has ordered mr demitra to turn over his records initially ordered them to be turned over to revive and then he revised that to be to turn them over a camera for judge uses review so our challenge the record keeping requirement is still very much alive because of this court holds d that was an improper sanction and that it would have been improper to keep them in the st place and judge who certainly can turn them over review them of the challenge the fifty thousand dollars fine is the alive as well now to be quite honest with the court we're not here primarily about a fifty thousand dollars fine and a mostly expired record keeping  him we are here because this contempt order has an ongoing stigma on on mr hamid record and it's can be used in the marketplace by republicans and that's what we're really asking the court to particularly focus on properly considering the agreement and taking the preliminary injunction and taking account of the undisputed facts that show that mr dimitri did not violate the preliminary injunction but let me briefly address the civil versus criminal question st of all do not weary of this if you at the very beginning of the hearing i judge you said there was a remark by the meter's counsel earlier something about this is a hearing about the injunction there could be criminal mixed up there simple and i only reference that to show that this issue of whether this was simple or pro middle and whether the proper procedures were in place was really before judge hughes it was not waived he considered but absolutely not in answer to your question your honor judge hughes calling this a civil hearing does not make it a civil hearing what makes it civil versus criminal is the nature of the sanctions that are imposed that's what the supreme court said and bagwell to be honest that's all this court needs to read to decide this question beg well says that a flat non verbal finding is the quintessential criminal sanction it wasn't tailored to any evidence in the record as damages as my opponent conceded in judge  never explained how the fifty thousand dollars fine related to any compensatory purpose so it's your decision and i take it that this is a criminal sanction absolutely and therefore it could only be imposed after criminal procedural protections were in place we raised that at the hearing we raised that a motion to stay filed right after the contempt was in place we argued that these were criminal sanctions imposed without the proper procedures judge hughes at that time could have corrected  error and held a proper here but i'd like to briefly turn back if i could just a moment to the question of the interpretation and i think judge southwick asked what is the evidence on the order of contacts the evidence was lagos interpretation of the paragraph or even under the suggestion from judge southwards question that it has to be an initial contact to solicit employment the initial contact to civil hearing or committal hearing he said it's going to be a civil here so we could take his word for that we don't have to say oh judge he was a civil hearing please give us a trial by jury he would have left us out of the courtroom it only became clear that it was a criminal hearing when the sanctions were imposed at the end of that hearing at that point we had only appeal order because we had appeal with of those contempt sending action but we went even beyond that and we raised the criminal mistakenly believed that this paragraph or covered all discussions of employment with reebok now by final point on the still worse is criminal because i'm sensing the court doesn't want me to go back to the interpretation were as you write i don't just stay with the c and my very last point is judge stuart i think your intuition is precisely correct that once this became a criminal hearing it required certain protections as a matter of structural  r that's what this court held in the american airlines case where there was no objection below to the absence of criminal procedural protections no objection at all here we have objections that's what the th circuit held in the buffington case that once you've got an appeal will order you don't need to raise the criminal procedural protections again because that is a structural error as though that for that reason the courts without a bare minimum vacate all from no sanctions of course we ask a contempt