so now we will move on to the to the second venture case this is number hope five fifteen thirty seven venture industrious corporation versus auto   what matters is whether or not there was a deliberate act of fraud or mis representation in the case so we believe that whether the the core reason was that there was a duty situation where judge column has made extensive findings about the lack of relationship and he says he concludes that this would not that if the correct information had been made available this would not have affected the jury verdict and the question is while those findings were made in the context of the b two motion the newly discovered evidence motion why doesn't that carry over to be three and show that there's no effect on the jury verdict from the fraud if we call it that so there are a few questions embedded in their jobs when we tried to take them in and in order if i can under under the local rules in the east used to michigan parties are a lot of cited case if they believe it is presidential value under the standard articulated in that case judge once a party a material fact unless unless the opposing party can show by clear and convincing evidence that there was no prejudice at all that's that's on the rule sixty three under rule sixty b to be the findings your arm is referring to we believe the core applied the wrong danger to determine what is in what is not material with the court ascension we did i forensic accounting records and tried in an isolated fashion to quantify them in dollars and cents to see how much they would or they wouldn't have affected mr left post testimony and then ultimately relied on  what was different about what the court the court tried to quantify how big a difference the evidence would make in its mind and determine reliance or left coast testimony that would be made a difference because mr lefkow said he would change his mind i think that's actually inconsistent with the court's own comments at the close of the april twenty ninth evidentiary hearing when the court stated on the record see if the jury unless the other side of the children hear a convincing evidence has been known it all and did you like it because on the beast three it seems that the district court focused was virtually entirely on the discovery fraud yes but did you argue something other i mean what we're talking misstatements in their financials it was we we did not claim in that hearing that they didn't give us those improper financials certainly we had an argument that there was discovery misconduct as well but that was not the sole argument we had an independent argument that the whole april twenty ninth hearing was about was the misconduct and fraud and there was the reliance by the expert and his damages model on evidence is that was tainted by fraud or misconduct and the corps essentially ignored that horribly wrong around simply with discovery misconduct which is inconsistent with the wording of the rule the rule contains no limitation but the only kind of conduct lately it can consider is discover last off case off from the seventh circuit makes it clear that the misconduct doesn't have to take place in the proceeding much less in discovery indeed the rule itself where it talks about fraud and says including what was previously referred to as extrinsic or intrinsic fraud extrinsic fraud when they used to use those terms was fraud outside the case intrinsic fraud was fraud in the case of the the  ultimately concluded after an extensive discussion of the facts on the witness testimony that even assuming the for i mean i think we can infer from what he said even assuming the fraud didn't he conclude that the other side even if it has the burden he suggested or jordan had met that burden because there was absolutely no we lay ssion chip between the relevant testimony that their data just witnesses gave in terms of damages and the so called  no effect at all indeed his own comment at the close of trial i think is just the opposite moreover there was evidence we submitted in connection with the b two of an expert witness because mr lefkow himself testified in the court in another section his opinion quoted it was he relied on a grand blanc plant financials ought to and including june thirtieth two thousand t you did not use the actual studies to make the calculation answer i used the financial statements to actually as i said categorize the cost question so the financial statements were the down the plant calculations used so if we if we were to hypothetically agree with you that there was prejudice here on the beat three theory has offered testimony under the testimony that the ratios are not impacted by the changes that were made in the image or your payables issues connection at the plant ok but let's leave that a moment and go back to our or granted a new trial damages ok let's assume then that we've established that there's fraud and so the prongs remaining is is whether or not that would have affected would you agree then with the other side that under jordan and elsewhere it we've received anything it was it was submitted overnight and by fax overnight last night no overnight yesterday by fax well we've we don't happen so i'm sorry that you don't because i want i want to discuss why this is not a shark face it is not a straw before we get on to that that this this part that you read from page eight the district court's opinion strikes me hurts you because he's saying there's not sufficient misconduct here that would cause the court to consider a per their evidentiary hearing in other words he's declining to consider the issue of prejudice that's the way i understand what he's saying is not a problem shriver case because there were no false statements there were no false statements in this case because in this instance the audited financial opinion of the loop to show remains last hurrah as part of this forensic investigation we are not engaged to is did not perform an audit for purposes of expressing an opinion in accordance with generally accepted a they are not challenging the audit opinion of deutsche of that is somewhat startling to me i mean i thought the whole point of this report is that the financial statements were not correct and impact they said we can't even tell whether the earlier precisely what is it issue and it is a very narrow what is the first paragraph the top second set the working performed included the process of the data five related party transactions investigating the nature of each tr in order to determine whether the transaction was considered no less favorable terms to the debtor that would be obtained if the trajectory were arms like transaction with another facility judy i just want make this point the related party transactions were fully misread it i am not understanding on page fifty three of your review discussing the audited consolidated financial aventura holdings for ninety two thousand was yes and i think i would have it is because that's what we're talking about here as all with respect to what they find and let me tell you what that is and at page page but again here's the company saying it appears this financial information previously publicly reported by venture holdings as far back as one nine hundred ninety eight is unreliable the appendix sub your point about this let's assume hypothetically so we reject it and we say that the financial statements were full why don't we have to send it back to the paragraph at the top of the page the last u t subject to objection for from judge when we'd like the parties to submit supplemental briefs two weeks from today no more than ten double spaced pages in l limited to a single question and that is for purposes of beat three what is the standard for prejudice under six circuit law and i think you should include in that the question of whether we can properly consider under our rules the jordan case since it's on published ok thank you about that two weeks from today is that