appear on behalf of appellant samantha or do you know the d p p a case that's before you is akin to two different cases one is the class action case and then we have the individual claim that remained after certification was denied argue several different issues on appeal but in the interest of time i intend to focus on three the denial of class certification the ruling as a matter of law that the city entity cannot be directly liable and trial evident truing that affected the defined we can look at the sandusky case which related to the telephone consumer protection act and they are the class was defined as those who had been violated or that there had been the victim of that because of that act even more recently this court just in december heard two different class action cases the post aco case for example that class was defined as individuals in custody who have been or will be diagnosed with the infection but who don't get treatment with a certain drug in the stuart versus state farm case the class action was defined as policy holders who received actual cash value payments that were in contravention of arkansas law it's not uncommon for the class to be fought defined in a way that includes that they that there has been a breach of law so that that your honor should not be an unpaid you're familiar with this concept of a fail safe class i'm sorry are you familiar with the concept of a fail safe class at no your honor ok it but with regard to the different kinds of class action that this court has had no problem finding were properly sort of fireball they have been defined in a way that the people who will ever involved that we've got several d p a cases that we've cited and that have been across this country that have been the same cast action that we're asking to be certified here typically d p a have two different kinds of county circuit entities access her which is madonna case or many of the cases you've heard and then we have the other side of the coin which is where you've got one violator who has access to many people that's this case when we look at the predominant common predominant fair issues of fact i'm off for example in each of those cases if we're going to bring individual cases we'd have to show how the motor vehicle records are maintained in the state how chief pietrzak had access while most of what you just rattled off is proving liability which has been admitted in addition to those factors however your honor there's also going to be common questions about peter's x employment history and also policies in practice and his willful disregard that wasn't admitted your honor now what we know is that the same evidence the same witnesses and the same documents will be used to prove the majority of the issues i know the other side wants to argue that this is going to be t usually in the course of discovery what you're going to determine there's either going to be facts and evidence that are going to show it was legitimate in which case you easily can stipulate to dismiss is it going to be that easy though i mean you've got a chief who would have permissible purposes to view a lot of these records cracked and typically a police chief would have some reason to access individuals yes i'm just rambling on how this isn't going to be with the district court was concerned about a bench and many trials where there will be disputes on whether it was permissible or impermissible well what i think you will see your honor is that when we get into the discovery is that there's different kind of subclasses particularly of individuals that have been accessed when you're dealing with the for example samantha or do house family members there's discovery right around that you're going to cover several same thing when you're talking about public figures the same thing when you're talking about coworkers in fact even in the discovery order issued in this case which is in the agenda one of the issues was production of information about two hundred other people's access and i thought from the briefing that there were the scum three showed access of five thousand seven hundred forty two hundred individuals at least over a hundred that's all you're allowed correct my point is it was not inefficient and it did not take a ton of time either dayton has records to substantiate these accesses or they don't and with regard to that discovery order the judge had the similar analysis one argument this is going to be too burdensome to come up with information for two hundred the court quickly dismissed that argument and said in reality we're dealing about different groups of people and it's not going to require an individual burden some amount of time the alternative of course is to have a thousand cases now that won't happen here because the court kno the names of the individuals have always been concealed despite the judge despite when banks special investigation report advising dayton to inform the victims they never did they didn't then they didn't during the litigation they have it now so we have a class of individuals who've never been informed of the abuse of their information so that that is a problem in this case as well in terms of the cover up that we've seen in this case this is the only way that those individuals will even know that their information has been accessed but the truth is no court wants a thousand cases filed on this issue a class action is the superior way to handle such a case i want to quickly touch on the trial evidentiary rulings your honour's at trial as you note there was significant evidence that was excluded regarding damages in particular mr grunow was not allowed to put forth evidence that would explain her motional distress and stead the jury was asked to evaluate her emotional distress at a complete context in addition with regard to punitive damages even though the court in the earlier part of the case had decided that prior accesses by chief pietrzak whether it be overdue know whether it be of a family whether it be of other people was relevant to punitive damages and fact the jury instruction told the jury don't know about those right and so we would have to have some evidence in and discussion as to whether or not they were admissible for that but we don't have to know whether or not they were impermissible are not to her husband had been accessed her daughter had been accessed and you can't portray to the jury what the most of the stress with the personal security issues that she felt about that and the fear about that it was a distorted view to the jury and it was prejudicial it was substantially influencing the jury verdict so we not only have that with regard to her actual damages which were not fairly portrayed to the jury or the punitive damages which clearly were relevant and probative asper orders in the case i see i only have three minutes left which i need to reserve for a bottle thank you liability there are many issues as counsel pointed out i'm also would like to focus on a few of what i think are the key issues in this class in this case the class certification issue as well as the evidence harry rulin regarding the access is barred by the statute of limitations i think the court questions hit the head on the nail when it was asking about how the court ruled regarding the filing certification they requested no full audit of the d v s accesses and filing that information and in fact the only deposition that was taken was after the filing right before their filed their reply memorandum and that was the deposition of women banks but i understand her argument she posits that it would be very fairly straightforward either it's if there's something in the record that shows it's permissible or it's not it would fall into the impermissible category which presumably could be bigger is would you agree that it's a fairly simple on and off switch i distinctly disagree your honor we're talking about is the court point our accesses of forethought five thousand or so individuals but i think fifteen thousand accesses that would need to be looked at to reach that pondering standard which is a higher standard it's a stricter standard that this court has determined misere do know was required to establish liability for the us and so it would not be a question the question not only would mr peters act have to be asked about all those accesses but the city would have to look at whether there is records or not there are certain instances where it would be an easier question of class action  and that there is perhaps no other reason but an impermissible purpose for those accesses those cases are different and and would be easier and that a police chief in this case that would have multiple reasons to for improper disclosure and that would that would the issues would predominate probably on that is that yes there whereas here we're talking about the access or fought about in this case correct your honor the testimony at trial was that there was nothing done with that information and i think the court is correct there are circumstances where perhaps there is the access and the use that is clear or shared with some organization or i can think of some other examples for example if in officers rights to access the d v s system were terminated and the use someone else's access we would know that that was not permissible you're accessing it when you don't have rights to do so all or an employee who access information that has no need for that information for their job for example a social worker who accesses individuals do not have a case file with that county or any relation to someone of that county  would be distinctly different where you could see a class could be defined because there would be no reason but a permissible purpose here in paris if you're describing that doesn't sound like one that's easy at all it's social worker might have a lot have relationships with clients the distinct difference your honor is in cases like that you have a left of individuals that how the case files and their relatives and individuals that have been accessed and we've had in fact past actions involving that and those cases are distinctly different you can look at the records and see what the connections are and what they are here especially there would be what was the court's concern is many trials regarding that  and the cases here in this in this district that we have had classification have not been appealed and i'm actually speaking of some of the circumstances involving the social work which were easier questions but that can happen during the class discovery here not only in the plants council sit on their hands and not do any work to determine that but there would have to be substantial work in determining whether there would be liability in those cases i want to address the evidence sherry issue and that is on the exclusion by the district court of the access is barred by the statute of limitation of or do you know and others the district court did not abuse its discretion in not allowing that evidence in trial so the jury's the jury who is in the best position to evaluate that evidence looked at ms ordinals damage testimony she had no medical records she had no type of documents speaking to any security system or credit monitoring or anything like that what about any evidence of the access of her family members why wouldn't that be relevant to her damages to her her fear her uneasiness about what happened those were in dispute we did not admit liability and i was a key difference so the court would have to look at whether in fact there was a permissible purpose for that for family members who live within the city and drive vehicles within the city so we'd have to look at permissibility of those accesses which would confuse the jury as to what the issue is how many of those were there were there are a number a large number manageable number that there could have been enough evidence presented that wouldn't confuse the jury that actually would put this into context because it does seem that that's part of that's part of her her claim right that not only was i access but you you reached out and were looking at my family members as well i don't recall a specific number your honor but i do know several of those were barred by the statute of limitation which is then putting cases that are barred by a statue of limitation that y confusing the jury over here and i think one of the distinctions here is if we look at hostile work environment claims which is the cases that ms are doing all relies on in support of her argument here that the jury should have been loud to hear not only actresses for damages but hint of damages and there's a distinct difference here because a hostile work environment claims by their nature involve repeated conduct where here we're morgan talked about what discrete acts are and in that he is it was in the employment contacts you know your terminations your failure to proposal type places your discipline but the court went on to say the key is whether there are separate actionable acts which is exactly what these actresses are we have a statute that has liquidated damages tied to a specific access here in fact that i don't seems to me you're well i know it when you when we consider that if the class issue is still alive which counsel after we all assume at this point but if we're just talking about the damages case when did she learn about all these access after for suit was filed or just before suit was filed she this is not my cost the work environment where you live through for ten years and you can only sue for four she didn't live through this the she learned about it way after the fact right so the question is how did that affect  this this emotional distress was all much later than the statutorily bar events correct your honor in fact she learned of some of the accesses in december of two thousand and twelve damages her security system that went in in two thousand and fourteen after she had filed the lawsuit so you're absolutely right that it goes to my point that these cases are distinctly different than when you have repeated conduct of damages there versus she points out that she believes some of the district court's rulings in discovery with respect to the motion to compel and looking at some of those access should have persuaded the in circumstances and we would have to get into whether or not those accesses were permissible so we're looking at again and many trials on all those accesses and it's highly prejudicial there was a rule sixty eight offer of settlement before trial and it's correct that exceeded barely but it did exceed the ultimate modified upwardly modified judgment of under thousand right correct are you aware of any case law which has consider the impact of what when counsel refuses to accept an offer of settlement and takes a case to trial and recovers less than the offer of settlement and you were of case law regarding that i with respect to the attorneys fees all i know my time is briefly but the court got it right in this case with respect to the reduction of attorney's fees frankly  actual damages and eighty five thousand impugned of damages a significantly lower amount than they were asking for in this case also your honor the record is clear that there was excessive time things done by plaintiff counsel including thirty five hours by five attorneys for a complaint it was very similar to a number of other drivers privacy protection act complaints filed in this court so the district court got that right your honor and the record is very substantiated with respect to that reduction plaintiff counsel still got over one hundred forty thousand dollars in fees but the reductions were appropriate based on ff claims but instead to examine whether those claims are appropriate for a crack resolution that's what will twenty three sabbat that's the standard the court has never required liability proven  certainly well so again what they're asking for is to change the complete standard of all twenty three and the precedent of this case in the court this court should not do so again we cited various d p a cases where this case has been handled well isn't there a difference between a class that can be identified at the beginning subject to a later determination whether the claim has merit and a class like the one you're proposing that can even be identified until the end of the case when the liability decision class would be those whose information was accessed impermissibly that is correct your honor well how can that be identified by this report we can identify who the potential class members are after the class to certified again following your own profit and the score we will then be able to determine who it is that's going to actually get any reward out of it and this court has sided seven circuit opinion that says that just because you have a class and it's set up at the beginning it doesn't mean everyone's going to recover but those who aren't title don't and that's how the class should work now with regard quickly to the emotional distress issue here's an example here on ars if we had a peeping tom who viewed a woman one time and she didn't know about it her martial distress probably doesn't till she finds out about it now let's say she finds out that she wasn't viewed one time she was viewed twenty five times in the past and then she found out that others were so that all contributes to her emotional distress in the severe t of that of what had how she had been