with respect somewhere along the way i think we just record lost track of the fact that this was a motion to dismiss under twelve the two not a trial an error in the authority cited by s c and actually in the reply brief by california it does not say and to hurt pay calmly specifically targeted pay come by stealing money but i was to jeff that the cd distribution case which is the case where i was in arizona distributor who had an exclusive distributorship for electronic equipment there was a new york party that started to sell in new york that same equipment in c distribution case they said that that's enough basically you knew that this was going to harm  the arizona residence case in this case california and you knew that and therefore that's enough for target and you don't have to go out with a provable fine just described challenged towards the toward the target you need to know in this case that it was their money they were in california and you think that you were wrongfully holding that house knowing i mean this is a rather boiler in new york they know it's going to be shipped to california they know people if it's defective people being injured in california and clearly that's not enough for specifically targeting but when you when you are that actually they don't actually say that in the declaration of the declaration of mr o their general counsel his name i'll come up with his second doesn't say anything about that the only thing he says is we had no direct contact court took it under submission without oral argument in january and then decided in march of two thousand and two so there was never any opportunity for us to connect any of the discovery of ip and general art during the time they were parties in the case they never filed an initial no no information whatsoever and of the most in my view outrageous part of that was that i b m us now took the position that i b m denmark was a separate entity and therefore they didn't have to produce any documents that might relate to i b m denmark they relied on a case called citric acid which is clearly not applicable because the next case we had to coopers and live brands that they were just using the name they had no legal or ownership relationship so what any information about them including where they are they then may one after the discovery cut off of april fifteenth have passed they file an amended supplemental disclosure again not disclosing anything a single document as the that talks about that and discuss the evidence of direct liability they responded by not submitting our opposition research summary judgment to simply submitted the table contents and then arguing that we must not have made the argument that we can see that we focus to us was specifically related to the direct liability theory discovering the facts now based upon their their may one of the two thousand and three what they called initial disclosure which was actually eight knows the organization chart status of various entities despite the fact that our deposition always call for much more than that and then we get this a sandbagged supplemental disclosure after discovery has been closed and the  we didn't move for is reopening discovery so that we could conduct the discovery necessary to advance in the area perhaps motion for sanctions against that then there might have gotten some result from so therefore how to have an effect any impact the judge did not address the motion motion was before the magistrate i believe it had been argued at the time the summary judgment hearing and the magistrate subsequently ruled that it was mo that we have a system where people are supposed to have the opportunity for summary judgment motion is granted or even heard to actually test an affidavit to find the document to relate to the issues counsel i can see that he's new to the case and i believe there was some kind of hurt in the statements of the record made which i would like to clarify and i'll do that by addressing two of the questions that were raised first was it necessary for the district  out what they actually do when they can find out whether they and i had at least from what i can see some indication that there are people who are in these practice groups across companies who have something to do with this and they were trying to get behind it and they how were they supposed to get behind it except by asking for some documents and leaving them agreed on although they had it was only go back for the second and the notion that there was no discovery obtained that therefore there must be some connection between those and so we brought in mr sands to explain that i b m and all of its subsidiaries because they perform common functions throughout the world have groups that are similarly named but he went on because we want involved in this the only thing we refuse to produce is to say that we weren't we don't have any legal control or authority over i b m denmark and so you cannot come to us and ask for i b m denmark's documents you should have done that through a forty five subpoena we answered on behalf of i b m question which i don't really understand very well and that whether or not parents can be expected to respond after that goes to the merits of the motions the compelling again if we're operating under an abuse of discretion and so he never needed to reach the issue of the motions to compel if for example they were entitled to get some i b m information from i b m denmark someplace why wouldn't that satisfy the problem because he assumed even if they got it that the information they had asked for would not change the result on summary judgment and that that's what i need to know well and that's because they ask for generalized categories of documents without saying meeting their burden the burden is very particular right you have to say these are the facts we think  we'll get and this is why we think there is some adjustment and that burden increases when the facts you're postulating are out there which have to contradict the developed record evidence and here we had the thirty six witnesses declaration  have nothing specific about who work in any of this or or anything it's just general stuff well there's only you can only be so specific by saying we weren't involved but that depends on the answers the question of whether you have an application for just discovered with being on timely one of the motions was filed on the day of the discovery cutoff but was not heard until a month after the discovery cutoff the second motion indisputably was filed after discovery cut off now after the first motion to consider any serious time to not exercise that discretion in this case and the biggest reason there is what they com is now doing is trying to use this new theory to explain why the port in the ninth fifty they're saying well the court should have considered that it's outstanding discovery might have been relevant to our direct liability theory a series that they never argued to the district court and so you know you have a situation where you don't have a record below developed in the way that it would be if they had actually raised with this issue i don't want to responded presumably judge apparel who issued a very thorough summary judgment order would have addressed this theory as well and we wouldn't be operating you know in a vacuum on this issue that and it's a reasonable to conclude that i b m denmark who probably had no awareness of where most of these entities were located was expressly aiming its conduct at all of these jurisdictions or is a more reasonable to say i'm going to look at the next in line in the chain  pickup late in the day came up with this theory that i b m was directly responsible so we had to get sayings well they felt the motion summary judgment on may thirtieth well before the hearings go before the motion our opposition so clearly knew that their motion so that's another basis for our request