case number twenty dash five thousand three hundred and four hamilton county tennessee emergency communications district at all st level three communications l l c our argument not to exceed fifteen minutes per side  focuses on whether or not there is local exchange service provider well that means zeus is there a connection to the local exchange service that will permit the user to pick up the phone and dominant and what if that is the case then the supplier is providing a local exchange service or supplier it's obligated to provide the next instrument when on and is obligated to bill control it seems to me that the do you agree that there should only be one charge per villains can i ask just a basic question i guess i mean our job is to the false claims act we have a lot of cases on the false claims act in the pleading standards under rule ninety for that and one of the main requirements of pleading so this is just  at the complaint stage is that you when you have a broad based theory like you do in this case that you have to identify a specific claim a person's name service date whatnot and explain why that was false if you are now it's eyes that were at the summary judgment stage and you can correct me if i'm wrong but i haven't seen a specific example of this service  user was not charged and i want to see but the service user should have been charged that he and so i'm struggling to see why if at the complaint stage the failure to identify a specific false claim would not even get you to discovery why now that we're at the summary judgment stage ready we still can't identify one specific false claim why you should get a jury trial under the violation the false claims act will level three of something they had collected and should have been paid to ministry by a lady that he was going to have have you identified so you have the theory that why it's false is because that wired us activity reports actually are accurate and they include every d line that should have been charged that's that's your theory i know that there's a debate but even looking at their billing receipts i just don't see a record of one specific example this customer what is is subject to and the reason you say it's false is because it does not include other people that were charged by the three that did not that provided access by the whole three that did not receive this name on one  it is the fact that it was faults in each of these reports all which are in the record each of these reports were submitted and were certified as being each of these reports in language that made clear that they were representing because the districts do not have a single witness and judge markey as you noted they have sued level three for more than ten million dollars of failed nine hundred and eleven charges that they claimed level three fail to bill to their customers without pointing to a single instance where level three built an incorrect my mind once what they tried to do is prove this indirectly through the wireline activity reports these reports a voluntary form that everybody agrees have nothing to do with nine hundred and eleven charges and have never been used in this manner before and what the plaintiffs have done throughout this case because they have no witnesses because they have no proof they have no facts they have tried to shift the burden of proof to level three and the trial court correctly recognized that that was improper because level three let's not have to explain why the wireline  reports don't match the nine hundred and eleven remittances it's the districts that have to explain why those two things should be the same and there's there's essential e three reasons why you can't use the wireline activity report as a proxy for the number of not eleven charges that level three should have built the st reason is because level three is not a traditional telephone company not eleven ps only apply to local exchange two way voice can call on eleven that's not what level three so everyone there's no dispute the charges do not apply to inbound only they don't apply to data lines and  were obligated to pay so are you admitting that you're a service supplier under the statute and it's just a matter of how many lines there are that you would have to make that charge for i mean why isn't it  d up to you to tell us why or why it doesn't you're correct net level three doesn't fit the definition of a service supplier because they are a point provider and we made that argument at the trial court in our summary judgment motion the judge found that he didn't need to reach that issue because he granted a summary judgment you know if this were to immerse that would be something that would the trial court would need to determine but the of refused to give them the discovery that they needed in order to make the determination and i wonder if you could just talk about the little bit as i understand the argument is that the bills that you provide either state provide them bills for the we did produce one hundred and thirty months of billing records and what these were downloads from the link system and they list for each month every customer what that customer purchased whether nine hundred and eleven piece were assessed on that customer and if so how many and what the districts have said is that there's a very small percentage of those nine hundred and eleven records that are not adequate to do what they want to do and it's actually less than one percent because the only nine eleven things that were below are the ones to the retail customer portion of a single product enhanced local service or less and that is less than one percent of the services that level three provided during this time period so it's a very small portion of the billing records that the districts claim are in at it they also we produced those billing records in two installments one in november and one in the districts did want to notice any depositions of a level three witness until september when discovery end so the reason that they claim that they ran out of time to file a motion to compel to compel us to produce additional billing record information is because they waited so long to take their deposition so the the billing records and it's important to note that the trial court's the civically noted this dispute about the that the wire hynix in any reports are an accurate way to measure the number of nine hundred and eleven these at level three how long so how long did they have the billing how long did they have between your production of the billing now they had all summer to take depositions of any of our witnesses about it is n p r did they send you any erotic stories about the boeing records or any document of course or any other discovery about those records no your honor  it's not to get additional information at all and they you know they claim that they discovered that the records were inadequate at that september deposition that was taken right before discovery pose with the reason that that deposition wasn't taken until then it's because it wasn't noticed before so the so the boeing workers say whether nine hundred and eleven charge was shards to someone so they so the billing records presumably tell you how many potential lines there are that could have been a problem let's say from their perspective because there was no charge so i take it it was then incumbent your argument is it was incumbent upon them to investigate further about why there was no charge on these lines that were charged yes your honor well and remember that the pertinent question in this case is can you connect the wireline activity report to the not one charges and the reason you can't promote all three is that over money nine percent of what level three sold was not subject to nine hundred and eleven charges and the one thing that the districts have never responded to is even if the billing records were inadequate to do a full audit of the one percent that we did charge not eleven dollars even if that inadequacy exists the billing records still demonstrate that most of what level three sold wasn't subject to non eleven dollars charges and level three on it's own activity reports reported statistics for all of the services that it provided not just the ones that were mine one taxable proxy for the number of nine hundred and eleven charges that level three should have so but and a court recognized that the court recognized that the billing records were immaterial because the districts have no way to connect these two things and what they've done throughout the case is tried to shift the burden of proof to level thirty one dollars of the ways that the district tried to do that is through their argument under rule of evidence  they argued that they should be able to admit the arline it to the reports with no witness no supporting witness as secondary evidence of what are billing records should have shown but rule to no four requires that the originals  or these originals were lost or destroyed we produced we produced one hundred and thirty months what the districts are arguing is that they should be able to presume that the records were lost  destroyed because they were inadequate and because the districts ran out of time to file a motion to compel due to their own delay and they sought no authority for that proposition whatsoever separate companies in the level three family and former t r a director dr robertson testified this is a common practice in the telecom industry and then the rd reason that you can't use these wireline exhibit reports that they not one charges is nine hundred and eleven charges are assessed on access lines and what level three was reporting on b s marline activity reports from the majority of this can your period were telephone and the reason that level three reported telephone numbers is because again these wireline exhibiting reports were created before there was such a thing as a boy provider and they don't get any direction on how a boy provider who doesn't and that's exclusively what level three provides so if you have like a law firm and everybody has a direct dial there's not a line connected with each direct dial number so you might have a one hundred direct dials where you can down the at my desk in the law firm but that law firm may only have twenty five access lines but we now look at not all of those direct down the numbers are in use at the same time ok so that means that what would that actually phone at the same time but the level three customers have besley more telephone numbers than access lines or pathways and to give you a sense of the scope of the difference when level three changed districts are arguing is that they can survive summary judgment and go to trial without any witnesses to prove their case if you ignore at least five things you have to ignore the t r a's instructions on how to  sentences of level three years discovery most sponsons ignore one hundred and thirty months a one billion records and ignore warred portions of the district's own expert's report and testimony and we would submit that that doesn't come close to meeting the requirements of fifty six dollars and therefore the trial court's decision should be affirmed in all respects but my understanding is that their expert gillan what i would get is report i mean he seemed charged and i just it seems like a stretch to me but i don't know whether that presumption or something is comes from someplace else that i'm missing no your your exactly right and the reason is because mr galanter had no reason to doubt the testimony of level three represented him and what that representative said is the only company that he knew the type of products that level pre sold on a wholesale basis are companies that oh you're on a dress and have the we have it on you let me address a few of the comments that miss killing me st of all there is a correlation that they admitted between the they said that they used the telephone numbers the same telephone numbers to fill up the wire line or this road was in his deposition he was there thirty six representatives he say did he testified that in fact they used it for all of the purposes of telephone numbers that he said to bill their customers they used it to supposedly bill no one charges although not all of them and they use them to complete the our nativity reports that is their testimony their is their admission it was and you knew that there were some lines that got charged on fees and some that were not did you depose somebody on that or try to figure out what specific lines were not charged and why you chartist you cannot tell from their billing records the lines that had not build so when we talk about one thousand and four in the application secondary evidence rule is applicable because they did not provide what the court ordered them to  line reported on the wireline activity report is a line that should have carried with it a nine hundred and eleven charge me not saying every single one of them right it is he cited in dollars that were reflected on the billing records and that's what we were doing in may so we were able to take the deposition in the interim then you find out that the billing records just show the number once which they remitted not the number of lines on which they