earl there's no question that the standard view in this case is noble when the abuse of discretion standard applies on a motion for summary judgment or a motion for summary judgment is merely a conduit through which the district court decides the legal question in a doesn't have to follow the usual tests of summary judgment such as whether or not there's a genuine issue in the material factor or credibility however in the rest a case such as this w the standard is denotable and a case may be decided by summary judgment but the district court still must abide by the standards of summary judgment in other words summary judgment cannot be granted if there exists genuine issues of material fact and credibility when conducting the design of the review to the district court can order matters outside the administrative records and that's what the district court did here and no one's complaining about that but what that additional information did is it created a number of issues of facts and credibility which are disputed and we just don't think i mean i don't i don't know i think there is a dispute because what they're saying is that when they did that they use the policy which they now say is the one which governs we say that there's a different policy so i can't agree the deposition of injuries threatening the question you told brit earl in that letter that according to that policy the definition of disability had two parts yes and you told him that if and you told him that he was disabled if  one of those two events occurred correct yes or and one of those was if you was unable to earn eighty percent or more of his index covered earnings correct yes i did and she wrote that letter vision upon a policy that she used and i'm still trying to find  forty eight of the excerpts of record you say that you included the paragraph to definition that is the eighty percent earnings definition but copying it from a different policy on your desk is that correct to the best of my or correct recollection sir and i asked her well if you recall actually doing that or are you testifying got it that's probably what must have happened she says i'm testifying about that probably in fact is what happened so we have a dispute we have an issue of fact and credibility this policy that this lady used and relied on it to tell mr earle that he's entitle to these benefits but not only did she just tell him that he would be entitled if he satisfy the definition she went ahead and deny that on that basis and so did karen nichols her supervisor on page eighty five of the excerpts of record here in nichols deposition eighty percent of the index governance i'm asking her if she denied his benefits based upon the second definition and she says it doesn't say that it's within his salary range and i says ok and you take that to mean that you're denying it based on the second part of the deposition no i did i did on both so in other words not only does do they use this policy but they actually didn't either benefits based upon that second definition of the policy revising your client as to what they thought was policy continue when it didn't but the problem with that is that the district judge was doing that on the summary judgment motion you know the policy says it cannot be amended in i don't think a employee can create the policy i think they can use a policy which applies and they said that they used a policy which applies here the policy which ended up in the administrative record  you have to understand i asked this both of these claims people wall did you review the entire administration of record before you wrote these letters and they said yes that's what we do well if they did that how in the world that night used the policy which would eventually ended up in the administrative record if you ever found there was no that's the problem that's why on this summary judgment motion with this policy that administrative record when you reviewed this thing and wrote these letters to this man saying he would be entitled to benefits under two definitions and they said we don't know i said well how is the file compiled well usually it's compiled with the new information first and then as later information comes they stack it up they didn't know when that policy was baked stamped they don't know when and if it was in the administrative record when they were writing these letters denying these benefits the only thing they could tell me was that they used this policy with these two definitions my point is that when the district court is deciding a case on summary judgment you know for review it's not just parag edge of to decide whether that return for well we didn't get enough it's provided i mean you had a deposition that you didn't get an opportunity to i mean and i guess we were resisting summary judgment we were trying to avoid summary judgment and i think we raised all these structural issues which need to be determined i guess i wasn't in a position to be able to do that was means to me that you can seems to me that you could raise the question with the district court judge about what you know which was the correct time right and i and what use you were to know what policy was in effect at that time there and you could determine whether or not these later on in two thousand and three there was a mistake that with me you have to understand that what we were doing was responding to these letters that these women wrote which says that this policy contain two definitions and then we get in the administrative record a policy which can change one definition so i took the depositions of these women to see how can that be and they said well there's another policy and i asked them well did you handle the other claims you know i had these two lower level women talk about this whole thing that you're raising and when they said i don't know i mean i've never handled any other claims the district court issued an order before i took the depositions of these two women say produce everything you relied on in the this claim and i asked andrea sidney i believe the first woman did anybody show you judge adams order you know that anybody tell you about it know did you take any measures to try to find this other policy no we were i asked the people who were largely to pose where this other policy was and we didn't get any answer in oral argument judge judge policy and and i just think that that on a summary judgment motion where there are all of these issues existing as to does this policy exist is he entitled to benefits under the second definition that's clearly an issue of fact i think everybody agrees about that the problem is that i think when judge can decide this case on summary judgment he was actually making findings of fact and  making credibility judgments and making value judgments he said that andrea sidney and karen nichols work on the case was sloppy or maybe incompetent fellows or judge how this works but i guess the point is that on a summary judgment motion those are definitely value judgments and credibility determinations which i don't think you can make and i'll just say one more up looking at the very same thing he left on summary judgment the calculus is different because he's got to make findings of fact under rule fifty two and and be more specific and the judge can was pretty general saying i don't find any credible evidence that there was this other policy in the face of these depositions which says that there is instead of that global determination that i don't find any credible evidence he's going to have to make specific findings on why he doesn't think so therefore we think that s applies and then by what happened later years later it's nothing more than a mistake ok here's the reason your honor as part of the district court record and it's in the docket sheet there was a certification of the policy as counsel for the plaintiff talks about what's on her desk is a policy that is in now their policy on known applying to a different employer other than now what's discouraged there was a there was a certification of that policy this policy was in effect for a certain period of time this was the only policy that this company had this subject and this person was testimony from the interested me and care nichols that they made a mistake that this was not the part of the the language that they quoted that included the eighty percent indexed covered earnings second part of the deposition of the definition of disability wasn't part of the actual policy till malcolm now there isn't any evidence and i think your honest question to my colleague is a program there isn't any evidence that contradicts it there's evidence in the earle started work at now called were during that period of time ninety five but over time you know the policy changed well that that supposition while clearly insurance companies can charge a higher premium for this better problem that's correct but what i would say is this the record as we certified the policy this is the policy that applies the only evidence that they have that there might be a different policy never provides the factual link between the policy that andrea said they may have relied upon and now and that's the fundamental factual link that does not exist in that case in this case  corporation in north america has all sorts of different policies that have a variable different definitions and there was no linkage between the policy language in the letter and any particular policy running to north america or whatever  that this is the policy that's in effect and there's no contrary evidence other than speculation that there must have been another policy because of what was misquoted in the language of the letter i would also point out this there is other evidence than just a court requested and tried to get a handle on just what you're saying what is the history of all of the policies with now though but they didn't ask that question then and counsel is quite right interested me and karen nichols are not people that would have been able to answer that question because they're not high and change it so that people like mr earle have a remedy but there isn't a remedy under the rest of that allows the amendment of a policy to provide mr earle with a definition of disability that isn't in the policy that is undisputed before the court and it doesn't create a disputed issue of fact to say there was some other policy when there is no linkage between that policy and now bill or mister unless the court is for the questions that matter sit down thank you you with all due respect counsel's arguments some like those that he should be making out trial not before appellate court because the arguments themselves raise issues of fact and credibility about where all these things are  well what efforts have you undertaken to attempt to determine what policies have that type of definition in them the district court exercises discretion to allow discovery but in that exercise of discretion we were given two people went to the polls and we deposed those people and and basically because they were the ones who made the decision that there's another policy not demanded amended version of the first policy but a different policy i suppose it could be an amended version of the first policy or the the one that they ended up in the ministry of record but we we did make efforts to try to do this and i think what we did in taking these depositions was raised these issues of fact on something which cannot be decided on a summary judgment proceeding all of these favorable inferences about there being a another definition were decided unfavorably to mr  and i don't think that's proper on a on a motion for summary judgment there was a vocational evaluation to try to determine whether or not this man could earn eighty percent of his wages that would we have disputed from the very beginning that the policy which ended up in the administrative record was the one that applies in this case when you look at how do you respond to counsel comm