well this is the fourth case in which this court is asked to review a similar fact pattern involving a mass fax campaign undertaken by a company called business to business solutions i believe the most recent decision was a case called citing versus alco citing an insulation company against alco in which this court reversed the summary judgment similar to the one up here today in favor of a defendant and lay down the multi factor test for the question of whether a fact on half of a particular defendant which was the governing standard at the time these faxes were sent judge cox here despite the fact that what we have is evidence that two employees of manufacturing financial one of which ms khan said was her flyer the other one was created in the first instance it appears by business to business but she made hand handwritten changes too and they those were incorporated in the final version of the faxes were paid for by mr brundage everything was done from manufactures financial premises during their business hours  everything was done for the grand scheme of generating mortgage leads for manufacturers financial businesses this to me seems pretty clear that these faxes therefore were on behalf of manufacturer's financial corp but ultimately not only did the district judge deny our motion for summary judgment which we believe should have been granted on those facts he somehow found summary judgment no question of material fact that the defendant wins and it would be to be documents are kept out just assume hypothetically since that issue wasn't decided do you still survive summary judgment we believe so yes for one thing this court has already credited in terms of  the transmission logs from b to b and so we think that the precedent set in the american copper and brass versus lake city decision that that aspect of the b to b documents and how can that be in a can you survive summary judgment and i guess my question then to answer a question with a question would be which universe of documents are we talking about because we're if everything because we're talking we've got we've got a stack of the transmission logs which establish what was sent in to whom and that's critical and i'm not going to stand here and argue that it isn't then you've also got the correspondence between the b to b representatives and the representatives of the defendant and his con and mr brundage and i think even without those documents just their testimony is enough to get through summary judgment on the on behalf of point and i guess where i was starting to go with the american copper point is that this court and many other courts have already credited the authenticity of the same transmission loss but ultimately and i guess my conclusion is that to me it's a non issue because rule fifty six says right in it that affidavit are a credible useful appropriate as long as they would be in its state goes to evidence admissible at trial and the problem is if she's unavailable that it creates some independent issues right it might although in the instances where witnesses died witnesses become unavailable it's not as though the entire legal system puts on blinders and just pretend things didn't happen but we don't let affidavits in a trial if they become unavailable true but there is plenty of precedent for letting in for example prior sworn testimony in deposition format where there was an example an opportunity to cross examine this woman has given i want to say between ten and twenty of such depositions is this defendant have an opportunity to cross examine or this particular defendant didn't but other similarly situated defendants did or any case law that we can hold this defendant accountable for someone else's well i think that under again the eviden rules that prior sworn testimony can come in i don't think there is any case that says that a particular defendant had to be presented the opportunity to cross examine for it to be admissible for example a defendant's trial testimony can be used against him whether the that's obvious because that's the defendant he's participat well i guess what i'm going for is they say a criminal defendant gives testimony at trial in his criminal case that's available in a civil case sure but he's represented in it he's represented by his own attorney there ok my point is you're taking a different deposition from a different case and using it against this defendant and they were in a party to that case and ultimately you know i understand the concern  that's an issue that may have to be reached down the road i don't think it's an issue that is been ripe and fully developed for this court but rule fifty six allows for affidavits is long  she had hiding her why she unavailable he's been having all sorts of medical issues in that's why she's been ducking subpoenas and the district court in new york essentially excused her because of surgery in this case i believe so whether she recovers whether somebody else from b to b could be brought in the give the same pretty unremarkable testimony that yes these are records of ours and ultimately there is also the fall back in i know the criticism there too that expert witnesses are allowed to rely on things that aren't necessarily things that get admitted on their own and here we have mr baker steph the expert that's reviewed all these records the transmission logs at least and said i credit these these appear to be to be accurate and here's my conclusion there's no  countervailing expert in this case a crucial witness in this case without your own abraham they had to tell mr berwick of the president of compressor engineering what facts he got he doesn't remember getting fax so counsel had to say this is the fax you got mr brock and that was from mrs abrahams records without those records i mean this case goes poof i mean there is just nothing there the southern district of new york she didn't show for that and i was served with nothing showing that the court let her out of it for for medical reasons all i was we should be the decision maker in the first produce admissible evidence to form the foundation of their case i would think that summary judgment would be appropriate most appropriate they presented in a form that would be admissible if she showed up at trial so what do we do with that like what if she shows up for trial why wouldn't the district court have to wait till trial and then dismiss the case well we're talking about a lot of a lot of cost would have to be incurred by by my maybe you're right on the equities but i thought the rule is that if they present it and then admissible form it summary judgment the district court has to accept it and then rule if there's a material issue a fact well under federal  certification of the business records right well she would have to come in and testify to that why it just says you have to challenge him and you can challenge him it doesn't say you can cross examine her so you could challenge the records mysteriously you say i found these record somewhere somebody has to say they're mine and in their business i thought she said that in a certification well in that in that in her declaration she she  a motion cut off for you and you have to have a case that's you could present to a jury and they just don't have that with all of these records in the district court not answer this question and it's sam all this comes in don't they have enough to withstand summary judgment well he did not answer the question right but isn't judge gibbons right that if we disagree on the totality of the record he should make that decision in the first instance well perhaps it but turning to the possibility of evidence that has been submitted in this case still think even if those records came in and we don't you know we don't have a question of fact here authorized this julia conferences i don't remember any of these documents at the time that these documents were being promulgated i couldn't even speak english very well she's a number going from russia i employee of manufacturers when she's sending that document on its face i mean she we don't have any testimony from anybody because she doesn't remember it but that documents the responsible part going to carry them past a summary judgment so we have and then we have two individuals i don't find on these documents or wilson on a bush and we don't know who they are nobody testified who these guys were so you know we really don't have a live witness that can really get time i these faxes into manufacturers and also we have to look stevens didn't have any knowledge of this and didn't authorize it those those findings have not been appealed they are established for the purposes of this record  so if the one person at manufacturers that has authority under all the testimony we have doesn't have any knowledge of it then how can manufacturers who have ever approved this  doesn't never did that and you know continent never said she ran anything by stevens so we have the one person and stephen did say that  he had he had hired marketing people in the past they did not ever pin him down as two women any of these yet hired any of these people so they do not kind of down to this particular facts it's just they just don't they just don't get their with any of their with any of their testimony they have these documents and they have they have exhibit two which says that these documents are being sent on behalf of charity marketing services brundage is outfit they have the check the check charity marketing services brundage is outfit nonparty paid the bill for these faxes not manufacturers and you know we have a couple of them sun manufacturers fax but once again no testimony that richard stevens you  motions in federal court where you know i could not you know come up with a with what you know one of the operative facts i needed to prove my case and you know i just suffer the  consequences we know in this case that you know it is controlled by siting in the insulation the you know we you know he has to show that it was sent on behalf of  manufacturers was engaged in says license and thirty seven states which would indicate the you know the this whoever was something this fax all probably brundage was trying to you know get leads  they talked about leads being you know purchased from manufacturers we don't have evidence of one lead they can't point to one lead the manufacturers point it out to  you know just we just come up with nothing every time we you know try to you know pin down a fact in this case there's not enough testimony or documentary evidence to do that so thank your honour's if i could just raise a couple points briefly with requests respect to the evidentiary issues i think this truly is a cart before the horse situation these declarations as they exist in the current record  clearly sufficient for rule fifty six purposes in fact i think that these declarations are something credibly similar to them was what this court credited when deciding the lake city case and the alko case and also imhoff versus alpha cino which i didn't bring up earlier ultimately there may be an issue at trial in terms of procuring a witness to authenticate business records but we'll cross that bridge when we come to it and there's nothing magical about carolyn abraham what about their point about the inequity that creates going forward if it looks like you cannot produce or at trial and that will be essentially the the bomb that sinks the ship well number one i don't think there is any bomb that sinks the ship for the reason i just stated because i don't think there's anything magical about him anyone else get in to be threw up her shirt jason abraham her son know he was not subpoenaed at this point we have the declaration and it is what it is but ultimately we're talking about rule fifty six versus ultimately what happens at trial and with respect to financial and in fact the reason that it started in manufacture is financials premises in the reason that it moved was because stevens told them to move so i don't think that it's this separate thing that council would like to portray it has and the fact that the president doesn't remember specifically this campaign doesn't sink the case i mean ultimately that was the eleventh circuit seris so really what we're dealing