central to both the issues that are on appeal i reserve two minutes for reebok on the issue central to both issues on the peel is whether or not the pla provided with a meaningful opportunity for discovery that is if you that undergirds both the order granting summary judgment and order  to does does in my right that that that moots the question of certification the class we don't have to get to that that is correct so we only get to that if we reverse on your use of discretion a discovery question  city of memphis for testing and they were not tested in november twenty third in the police director for the city of memphis admitted that at that time the city of memphis had in storage started it is important to know that one of the first thing that the parties did after the case was file was in a two way complex kept in order that divided the case into to faces phase may twenty fourth important because whether or not you're dilatory is important one of the issues important when the you had a meaningful opportunity for a foreign discovery within days of the injury  in the complex right it ends in february ordering the defendant to properly respond on two or three occasions and the defendant admits in open court own at least three occasions in that window of time that the discovery that it is provided to the plane is is incomplete and deficient it's just as i don't think anybody denies or doubts reading this that you asked for a lot of things you didn't get  asked for discovery over a longer period than you got but could you explain why the five years of discovery that you did get is not adequate well i didn't get five years o this data we're not saying is accurate so the data on the spreadsheet we're not telling you it is accurate in fact the only way to verify the accuracy is to review the investigative files so i have five years worth of data on a spreadsheet that the film that tells me it will not january twenty sixth and then the final one after they found for summary judgment in february twenty sixth so over the course of twelve months our c three different sets of spreadsheets and december there were there was more going on with the court in the magistrate in out of court opinions were what did you what was the understanding that you both had as to what they were ultimately going to be money to take the end of some of the investigative files and prepare of the sprits yes but you would have liked to have the investigative files themselves and if you again those were you prepared expend the money and the resources to go through all those investigative files and sift out the data that would be of use to you or how is that going to be pretty for did you have the know we didn't really know what they were doing because if you follow the timeline we got the first critchley in february twenty eighth lifting them then we got for the next nine months we admit it's incomplete and efficient we're going to already have the policies and the procedures that they said they follow they did give you that right so if you say well it's the policy discriminate isn't written down in a policy it's going to be embodied in the investigative files just give me a hint what what you think that might be is it going to be an e mail is it going to be passage of time what is what is it going to be that demonstrates this it's going to be probably and we didn't get e mails but it is probably going to be a pattern a pattern of conduct driven by a common mode of discretion exercise b government just give me one thing one tangible thing that's in the investigative file that you weren't able to look at that would that you think or hope will demonstrate that that the city is not willing to expend the funds to it may very well be if you have any idea do you have any any basis to say there will be a piece of paper in these files that will cooperate your theory and if so what what pieces of paper would they be being unwilling to expend the funds to test the essay but without the fouls and just totally in the dark i'm totally in the dark in track to assess what i located in a file that has been could be any number of things that they characterize as the reason why it wasn't tested or is this well with respect to twenty five sampling fouls that's what the city did the city gender as to why the kid was not tested well those twenty five files were withheld from the pilot we never saw them but the defendant use those files discovery and then why belittle and damages so well when did the discovery transform into potential liability discovery well the first  phase of discovery was class discovery but also merit based discovery so to the extent there were some issues that went to whether or not this was a proper class this was a proper class and that was proper for discovery because it's mits merit based so it was class discovery and mary based issues was in the first phase of the discovery case since the first decision the court has to make is when a grant for summary judgment was proper and before we even get to whether there's going to be a class with respect to this particular case impacted the one plaintive that can be demonstrated by looking at other similarly situated women right it could be so you can't really say well he's only entitled to look at the file for this one plaintiff which i understand he did and i was going to point out when you're looking at jane doe number two really focused on you got her yeah when they were imposing summary judgment and they said they had no meaningful discovery they didn't point to anything in the file that they wanted further discovery on so we know that there's no statement in the file of discriminatory intent there's no statement in there about cost or mr smith's mission who would have asked for that files or none just can't believe that at some point somebody didn't talk about sampling these files or are looking at a smaller subset determined in some way and let the results of that determine whether you happened is we got behind the city did and we were scrambling to catch up the spreadsheets were designed to answer in a raga torrie questions that we were under in order to based on the motion t spreadsheets were designed to answer specific questions they were asking in iraq authorities so it wasn't anything that i designed only in the aspect is there was no easy way to get it so we had to create whether you did fully and completely answer the in iraq the tories that you said spelled out these categories that were the framework for the spreadsheet those are so it's just again whether there's something else that the investigative file might show that wasn't for a field by the categories they asked you about is that a fair statement have you seen anything in what you did produce that would cooperate this suspicion that the plaintiff has that the reason for not testing these wasn't but i have not in fact it's the opposite which is what motivated me to begin to be to move for summary judgment to move the strike to strike the class allegations when the plaintiff refers to twenty five files that's not really accurate there were twenty five specific points that we called through that seemed to reflect the majority of the reasons why kate might not have been just tested so there were many more than twenty five files that would have shown some of those things so for example of somebody recanted there's more in that five year period there's more than one file in which somebody recanted their allegation of rape and they may have done that for a whole variety of reasons and we tried to faithfully capture what was written in the file itself it's not the defendant's characterization it's our effort to provide the factual basis leak came right out of the file is not a cure s it seems like a little bit a lot faster and cheaper just turn over the files then you doing this exhaustive data mining of the files we couldn't turn them over because they all exist in electronic form more over there they're all police files they're all  a live database and there are some access issues with regard to letting police personnel have unfettered access to these files because that was the only way to get in and we were these are native files these are native  pulled out myself one way or the other that that i can recall never that's correct well never really were you did you also provide information on other crime victims where there spence we agreed on what definition violent felony would have so that we could put this in the spreadsheet and so the spreadsheets reflect a review of a total of fifteen thousand some odd files about half of which were violent felonies and about half of which were sexual assaults for the period two thousand and one through two thousand and five which is two years the year in the two years after james to this sexual assault occurred in two thousand and three and you're saying that that was fifteen thousand yeah just for those views yes so when you say he didn't ask for the files themselves would that also be true that he didn't ask for them in israel fifty six d affidavit when he was then unhappy with what you had turned up in your spreadsheet i  don't he may have asked for them i just don't remember that was that there was a very long list of items in his that's fair you don't remember that's for only if the files were not asked for what was asked for in terms of how the discoverer of course words were put it really wanted to know who the individuals who are names you want to know what the crimes were you had sexual assaults or other violent felonies he wanted to know whether there was d n a evidence that weapons available and wanted to know whether that d n a evidence was gathered and then wanted to know whether they had d n a evidence was tested there was a time period question in there whether the d n a was submitted w were sounds like you're saying he never asked for the investigative files themselves until this discovery dispute developed i don't but i don't believe that the plaintiffs answer these files into we were in front of  two and a half years and are you saying you had essentially agreed to pull out the data points from the files that constituted the spreadsheet yes because i was trying to answer these specific interactive towards they were asking for very detailed information and we were trying to do so in the manner in which we could give complete answers to the specific questions again you know we as part of the process i provided mr spence a sample of fifty this is what we've done this is how it's going to look these are their questions the headings on top of the sheets that were answering in an attempt to answer your questions before i part of the february incomplete spreadsheet was a before that when would have been it would have been before i produced a very first one the spreadsheets about seventy two hundred pages long or something like that correct are saying that he signed off on the format of that spreadsheet before you actually undertook the effort correct and when we find out in the record  you can tell by my hands or i don't know all had their kids tested and they were all tested various times one three days after her sexual assault one three months after sexual assault and one many years and years later well so there's a parallel with the years after  it just depends on the rationale and you could look at the filing term and whether there was a rationale or not but specifically there is no evidence that the rationale was because of sex so you know the concept area got are saying we're not testing you because the sex the only name plaintiffs of all have their kids tested in the allegation is well maybe the timing is hanky well the timing is different for all three it's not their sex that's making up the difference or the timing it must be some what are you now measuring it was what are you now measuring began the allegation is that these kids weren't tested because these are women who all the planets are women there would be thousands more kids that would show up in the data that were women whose kids were tested there would be others that weren't tested there would be legitimate nondiscriminatory reasons for that is not being tested there would probably be some in which it was unclear as to why they weren't tested but given the totality of all that information you've got women whose kids were tested womens these kids which is a different times when sue's kids were tested from the gym it reasons women's whose kids weren't tested maybe we can't tell why you're not going to be able extrapolate that last gr did compare the testing of these rape kids with other crimes violent felonies for which there was some sort of similar evidence rick and you use the same data points for that for that category as you did for this category right and did it show a difference those are to my mind and certainly they had an opportunity to run whatever statistical analysis they wanted on and they didn't come forward with it eighteen nineteen and in the room fifty six the affidavit paragraphs five and six and so there is no question in this record that we requested these investigative files  there's been no question this record that the city did not provide them fifty sixty came along after about two years of discovery right right when were these requests made that you said i think were requests to produce eighteen and some didn't get the files themselves yes and the motion was granted and the city then responded and in and minute our responses are deficient we will keep trying and they just kept trying in trying to over the course of a year we have been foul summary judgment we don't know whether that deficiency related to their inability to produce these data points that resulted in the spreadsheet or whether they deficiency back not producing the files themselves you can't tell from that right well i guess i can tell because i know what i didn't get i know what i did not have and you didn't get it right so again do we find a motion to compel someplace that you gave us all these data points to answer the interactor is that's fine and good but you didn't give us the files themselves that we requested in the motion to produce no because the final the final spread sheet we received was after the motion so the first opportunity i had was the fifty six f you've said you never wanted a spreadsheet he says you two agreed on the data points in the regarding this but no the only good about the spreadsheet was mr spence we're going to provide some data in a spreadsheet here some data points is that ok with you well sure you want to do that but i had this great and most of it is blank but what doesn't make sense to me still from that is that i understand the request to produce that you want the file but you also had in iraq a choice that  specific questions he says that the fields on the spreadsheet corresponded to the specific questions in the iraq address is that right or wrong in part yes in part yes ok so he also says that you talked about how you would construct how he would construct the spreadsheet in order to answer the iraq of choice is that correct and it's not correct never had that discussion we talked about him saying i'm going to provide you some data in a spring actually with these data points i'm getting started is that ok robert yes that's ok robert i mean what is there any dispute about whether these data points did correspond to the specific paintings on it but the data is empty let me ask you about the columns do the columns actually correspond to the data you requested in the interactive tories whether they're blank or not taken because we've never identified at any of the officers buried in the fowls we never got so big names there but officers who actually were involved in these investigations we never got to them because we never