due process that for that reason we asked this court to take a very careful walk at the record in this case you know sort of everybody comes to the bench with different experiences mine includes eight years as a state trial judge in which i've heard literally thousands and discovery speeds and of course as a lawyer i participated in discovery speeds so this your me is kind of strange because it's very unclear to me what you hand that you didn't produce so i realize that there were arguments you know about whether there'd been a twenty six and proceeding i did all of that but at the core what documents did your client have that you all did not turn over for whatever reason based on whatever objection can you tell me that but your honor we turned everything over to him to the main evidence of this is that is he started with  there was no order for us to further response or supplement their response and because they were completely narrow in are we talking about two different events here number one i mean god i'm asking you so you can correct me if i'm wrong so you have the raid into which they took a bunch of materials that would have included not only the physical goods but the records and computers and those sorts of things and then proceeded one of the points raised by a polish was we took so much stuff we were really know where everything is what everything is it will be propounded two hundred and nine request for documents and eighty seven in a tory seeking more information than what they have already taken in in response to that we provided eleven thousand pages of documents all of which have already been taken by by by this point they have returned every bit that's not served the servers the computers that they could download from the service because there's also this argued about you gave us these p d s and they're harder of you in that court sort of made me smile just a bit because i can remember the days of actually having to go through papers and they weren't searchable by any other way than your eyes so i'm not familiar with the rule of documents that says we have to make it easy for you to review our documents you just can't deliberately make it hard like take the files and start shuffling them around so they don't make any sense but if the files are poorly kept by the kind that's you produce them as they're kept you know a drawer full of goofy files that's not as far as i ls i'm missing something at violation of anything that's that's just how good that is deliberately make the computer hard to read or you deliberately mess up a file leader paper or computer i get that or if you give somebody a computer product can't be open but i'm just unclear on this notion that you all were responsible for running i'm worth a clean business i mean you run the business you run and not every client is particularly good at keeping files either paper were computer yes  that's that's exactly are our point here all the documents that we did end up producing in response to the discovery requests which came during our electronic files can directly from our service and computers that have been returned that you will that your company was using that way in other words version whether it's searchable or not or easy or hard is what they were day to day living with it or it was messed up then it see now you said to the messed up file folders and that's just how it was kept private that is corrupt or ok so then can understand the need for the iraq tori's like we don't understand all these documents get your client kept in a messy way what was what about the iraq tours did you will not respond to me i know you said you made objections them subject to blah blah what was left out of the iraq torie answers and for that reason the court didn't issue an order for further responses and there was never a motion to compel filed indicating that anything was left out it was simply status reports was something we raised with the court when the issue was brought to the court the documents were required from to i truly respond to those were not provided in that position and before the fearing of the of myself with the opposing counsel we had agreed that we would submit responses to all the questions that there were they needed answers to by a certain date but that they did was post the letter raises another thing that i've been wondering about i mean that it sounds like you all did talk some in trying to resolve the one of you know one of the requirements for rule thirty seven is that has to be a good faith effort to resolve this stuff the matters before it goes up before the court that never took place in this case their status reports or submitted to the court without any conference was with us  and here we are in from the st circuit yele still haven't tried but seems a little weird to me because i mean i got a lot of these cases and sometimes i send to go and garvey you know just try to talk to each other in order to be in the night i realize that i recommended it and guess what they did and guess what they start coming back and having hearings every week in front of me because they actually talk to each other and that's a nice touch that's required as you say the concept of conference was literally blindsided were blindsided without issue in court it was raised at one of the hearings and in the hearing i raised it to the board to the fact that i've never received the documents which they were a lawyer to make these accusations a copy of it was their workers in any way shape or form in fact the dockyard documents our version of the documents that mirror the documents that united also had have been seized before the case started so any kind of modification or discrepancies would have been obvious  by their records and all records that have been seized before the case of the gun and none of that was presented to the court do these are simply allegations that were blindsided with what hearing and didn't have really have a meaningful opportunity to defend themselves when you had t supplier in the court did some extrapolations and speculations indicating that since one hundred and fifty dollars were purchased in a four month period the mist and must have purchased a one hundred and fifty every four months for the last three to four years there was no evidence to support that in any way the fees claims of wrongful seizure and i think that the way the porch saw this was if i ordered the seizure in the seizure did result in the seizure order did result in this season of counterfeit goods then the see here could not have been wrongful right it was one or the other and that is not the law the law says that even if the trademark owner can prove infringement even if there was infringement there's still a claim for petition pay for wrongful seizure they're independent of what another wrongful misrepresentations and that is seeking to see your predominant number of the goods were legitimate in this case we believe there were we already knew that they took thirty percent of market value thirty percent of the goods at the took were completely unrelated to their trademark number three it was executed improperly we had a case where they came in the lock people up in rooms for three hours without allowing them to interact with one another th took on to another room and interrogated them one by one that is something that was not allowed in the seizure order and it was done in this case executed improper one of the things one of the option i well it appears that that judge hughes had to have had or had a negative view of your client and its actions short of from start to finish for whatever reason that was we of course have the option which we don't exercise very often of saying the case back and having it reassigned to a different district judge you haven't asked for that and i'm just wondering why you have the i would do so i would i would do very much like to us make that we quest for this case to be reminded reassigned to a different judge all right thank you your safe time for a re key issue i believe and one that you're wrestling with is whether or not the court made sufficient and proper factual findings to find that there was a bad faith intentional harney who was also thirty six deposition witness let me ask about that if you have you know eleven thousand documents there's really no one human being who could possibly prepare well enough to know them by heart so if you're going to ask him questions about things that are contained in the document you have to show him the documents so the documents that we're talking about that he was unable to talk to speak to were there transactions concerning the counterfeit merchandise so when we got to the rd status report and hearing on the matter that occurred in september the court finally said produce bank records lined them up with the invoices and the purchase orders and show me an organizational chart that describe chart it's important because on january th when mike saw how many was ordered to come into court and answer the question that he was unable to answer in november in his thirty six deposition notice and again it's not about the fourteen thousand worldwide six months after the case was fired without testifying to that in the deposition nine months after the case was filed that was only discovered in the january th heerey hearing when he came in to testify and  counsel's representation that everything was produced and everything was in words taken is absolutely incorrect what documents do you still have that the tax returns of all the individuals pardon me know any written responses so do they i guess what i'm trying to figure out i realize is all these different entities and so on but you know came in beijing swept out the building what else do you need also we need we needed to the bank records that show where and we purchased from their supplier zigzagged orange products and when they paid for them and to whom and those were entirely missing we could not find them in the fourteen thousand dollars pages of documents that they say they produced in p d f we understand that we needed to print that there would still be documents missing as of today isn't there were never any documents produced asked to the purchase and sale of the counterfeit product so why was there never a motion to compel us to anything why was there never a motion to compel as to any witness or any document or anything else the management order that judge hughes issued in june in this case when he entered the protective orders of that we could proceed with discovery and when he acknowledged that  e twenty six at palm prints had in fact purred stated that discovery could now proceed and he would then be holding regular conferences which he didn't do over a period of time the status reports which we submitted single item that was missing namely the written responses the bank records the tax returns that transaction records of the counterfeit merchandise that we seize it in essence they were just missing and then they didn't respond where would they be if you're not in the building that you see went on i don't know why but if if we could make a conclusion at the end of the caves that they didn't mean team records for example we would have to look at the tax returns to see how they reported their income at the end of the year we weren't able to get those either their feet appellants only one of the appellant's had the audit delay issue that you speak of at the other seven did not we did not get those but most importantly i think the really good example here is the testimony of mike's ohana that came in on january th before the case was terminated when he was deposition was it just a general notice or did it know there were did you didn't specify things that the witness should be ready to respond to there was a list of about ten topics the st two were the business organization of all of the defendants in the case and the nd one was the knowledge of the purchase and sales of zigzag orange products genuine or counterfeit he came into the deposition and said he testified not one word about the fact that the main the paul sale entity the one at which the counterfeit products were sold the inventory had been sold five months prior to the deposition you know i'll tell you the difference between a status report and a motion to compel in a motion to compel you would have had to confer with opposing counsel and so other than this debatable june meeting whatever that was what conferring have you all done to try to resolve we conferred after receiving their answer and counterclaims when the answer included five affirmative defenses for patent infringement and this is not a case and he counsel said i stand on in response to the status reports you and your posing counsel not in front of judge hughes and not as you're walking into the courtroom but separate from that and the deposition notices and the discovery after the june conference when discovery comm we called e mailed a letter and left three boys we did not receive any response until a month later two days before the depositions were going to occur  that they were objecting because there was no twenty six conference or you know why they thought that because judge hughes said that so we don't know what i'm doing and that's not how we do things here here's how we're going to do it  so i mean i can see that but i guess what i'm trying to say is you wrote a status report these things are in the records are you filed did you can for about the documents that were missing about the tax returns about the john have a conversation where you said where are mistress of honeys tax returns reached out in the effort in trying to schedule the depositions and the sponsor that we got was that everything has been exactly what he just said here everything's been produced we've complied with everything so the answer judge change question is no as what i think is that right we did reach out on five different occasions and we received a response that he was a preponderance so we were not we did not  outside of court so so again the answer the judge changed question is no he did not do those things no but we tr raid that we did was at three different locations and we needed to have a couple people at each location so we had we had our for me or the relationship lawyers in in move to dismiss them two times and then finally in this status conference a rd time because he was asked to provide factual basis for who what when where for example on the false imprisonment or the wron seizure or the grudge that for us to bring in the case and he did not do that just filed the counterpoints a nd time and then a rd time without providing actual details we had to keep making motion for example we were given additional three days to return the electronic devices which were being copied in that interim time he filed an x heard a motion emergency motion to return the electronics after the judge had said they have an additional seventy two hours he and respond to that there were several motions and that there were unnecessary but they had to occur because we weren't getting anything case and that's very weird because it seems like you kind of have two arguments one is we've got too many documents and one when you're now it seems like your main argument is usually and to sort through the documents for you and i don't think that's how it works i just looked understand that we do have to go through that but they did not submit or find out of eight of the appellant's written responses either to interact or tory's or the document requests and they did not follow the organizational chart we still as we stand here today don't have a clear understanding of the structure of the companies and who is holding for example the assets and in else you're not required to use all your time i have to give you just three minutes back to convey or the only way i think your associate has something to m of us me i think the case has really gotten messed up and they may be necessary rest of a cape to judgment and saying this case back to a different judge what do you say about that our conference attorney who is a mediation expert and media they have to argument to explore not only how this court can get a grip on this case and find out what's the things that are not in the record i'm not sure we can even decide discovery issues that well anyway we would like for him you know make it with him to see if he can  that in that respect and there's a possibility of settling this case so that we would not have to cause it to be handled all over again by another judge bias or monetary interest in the outcome or anything of that nature well what about that but this judge has imposed the most severe sanction imaginable without even considering something short of an even without a motion to compel so it seems that his mind is more or less made up so that that sanction was ready used in september in the status report that every virtue in our record record acts or that we would be seeking terminating monetary or otherwise in the form of sanctions after that september which he failed to respond to the transactions or the business structure of the many defendants and then we went in for here a two day hearing in which five hours of testimony were taken of was still unable to respond to those so when the motion for sanctions with made orally to judge hughes the only response that response was not allow me to brief  allow me to produce the tax records the bank records the written discover responses of the five hundred who haven't responded and point you to the transaction records for the counterfeit goods the response was we fully complied participate in those proceedings but it's a it's a terrific very talented resource that's available and so judge dennis was correct in mentioning that as a as a as a as a an option and an opportunity for for both of you ok mr mr ballard indicated that your thirty b six witness showed up and said i just i'm paraphrasing i just glanced at the topics this morning and i haven't read the documents is that is that what happened so the company that we're dealing with might know and i'm asking you a direct question is that was is that what your thirty six witness says beginning the deposition if i've missed misstated it correct correct me on what he said but that's that are listed so what possible justification is there for having a witness that showed up and said oh i just saw the topics this morning so the thirty basics with this for this into my job was see so very small entity member produced a client for a deposition that i didn't meet with in advance to visit with the client about the kinds of questions i would be asked so chill out earlier the minute i want to get into attorney client privilege communication but yes i did pre ahead of time but he did you know say what he said i believe in deposition you know i can't speak for why it is that he said that i don't know if you forgot or not what it what it is that he was but that is what he said that is that was his representation she said basically she kept calling and i guess they don't fax anymore right eighty mailing writing sending the horse drawn carriage with a note on top or whatever and you didn't respond which response to that so we can receive those types of communication sites but i'm trying to why that doesn't make sense right because when they submitted their status reports one of the standard supports indicated that we did not produce all the documents that they had requested but that was very clear in their status reports so there should have been conference at that point at that hearing subsequent to that status report it was revealed by them that in fact we produced eleven thousand dollars pages and by that time they had only reviewed four thousand dollars of the pages that's less than half so they hadn't returns at that point i think i think the term the requests for fifteen and sixteen and that point i think there was one or two that may have been reproduced those and you're the ones who didn't and you know none of them so honey none of them had tax returns correct in what about bank statements or those produced those were produced and they they subpoenaed bank records directly from the banks themselves so i am i am under the impression that they're duplicate what we produced was exactly the same the what they had received well sometimes people have kind of side some pink records but that's another story all right what about this notion that when they were trying to set up the deposition they college you emailed you and something else to you and you didn't respond but forgot about any of those related to the st notice of their positions initially in the case that sent those notices for three depositions and that will receive the letter and in addition to the three the opposition notices at the same time they sent us two hundred and twenty requests for productions and eighty seven i believe eighty toys on the record right a large number of documents a large number of requests were sifting through everything before we were able to respond to them in full and when we did respond one of the issues that we raised was that such discovery in such depositions were not appropriate at that time because twenty six exactly what let me just say this to both sides it's been a long time since i've had to deal with discovery perhaps because we don't get very many of them at this level but they do not get better by writing more e mails you have to realize you're in california so maybe you can't meet in person but you have to at least meet by telephone and you at least have to set aside your dislike of the other person and literally walk through stuff calmly and try to work things out that's just how it works i have certainly dealt with difficult opposing counsel as a lawyer i've seen difficult opposing counsels as a judge but that's how it works and if both of you are doing it then you can get things resolved and that's regardless of how this case comes out it's just i can't help but give that advise to swallow your pride and have some conversations it's how much can get resolved when people put aside their anger and there are nasty e mails and just talk about what they really need and what they really have and how to work that  in your case is under submission and the court will take a very short recess before hearing