reversal in this case is required for some pretty basic reasons in clothing the obligation of a party moving for summary judgment to produce competent evidence proving that there is no disputed fact that is a basis for their motion the defense here failed to carry that burden in two respects that will get to but there also were tribal issues of material fact that the district court failed to this case arises out of is equally a business purchase for the defendants purchased the plaintiff's business hired him on as an employee and through that employment and continue working with the defendant in turn substantial payments there's an employment contract that has expressed provisions that limit the ability of the defendant to terminate the plaintiff and that's at excerpts of record eleven eighty six in moving for summary judgment the defendants assume the affirmative burden of proving that there was no disputed fact that they had cause to terminate the plaintiff because he allegedly and materially violated a law in contravention of the employment agreement so in assuming that burton they took took it on head on and were going to prove that there is cause that there wasn't fact a violation of law they then cite three we call them document retention regulations in the code of federal regulations that require the maintenance of certain certificates of origin for a period of five years now this  an import export business buying and so are you you're sort of sounding like you're skeptical that it's a violation of law are you denying that it's a violation of law to violate these regulations by destroying or not maintaining these records for five years no if if the regulation is violated it's a violation of law i might have argued differently in the trial court that these are not the types of laws that the employment agreement contemplated being violated but that was an argued below so for purposes of  appeal the key here is did the defendants prove prove actually prove that there was a violation of law and that's where they just fell down on this so the issue though is not that the regulations are or that this doesn't so i wasn't sure where you're going with  skepticism sound about whether this is a law so it sounds like that's not your point that the whether this is a law or not hasn't been challenged on this appeal the problem is the the regulations everybody agrees only require the retention of a certificate of origin for a period of five years so if you destroy a certificate of origin that is older there is no violation of law because there is no obligation to maintain that document very straightforward i don't think there's any dispute about that's what the believe that they have the burden in moving for summary judgment to provide evidence that the regulations applied to mr roberts personally and that they failed to carry that burden but for purposes of efficiency we can just cut to the chase i summary judgment the plaintiff affirmatively brought to the court's attention that there was a disputed fact as to the age of the certificates of origin in question i thought that was primarily with regard to the question of whether the the property company assets question whether the so was an asset of the company because it was i mean it happens as i understand it at the time of the transfer and was one is there a tribal issue of fact but more importantly is the issue that there is an affirmative obligation of the moving party to satisfy their burden in the first instance so there was no obligation of mr roberts to even respond or raise any arguments unless the defendants first satisfied that so that's disgusting away from all this who waved what i don't understand how you get around the statements in your complaint so traitor i'm forgetting his name but when it says that traitor talked about in paragraphs forty seven and forty six about half the documents were from before the purchase and half are from after isn't he admitting that half of them were from after which means they're within five years and that was in your client's complaint so so  no i'm not two reasons for that one that paragraph was never cited to the district court tell what it does it's in your complaint though how are you not bound by the statements in your complain so one on the burden shifting issue it wasn't presented as the evidence supporting the claim but if the question then is is this a judicial admission that takes the issue off the table for purposes of the litigation the only thing that can be said about paragraph forty seven and the second a minute complaint is that it's an accurate statement about what mr roberts recalls the trader mr duffy say so it's not mr roberts saying i agree that any of these certificates were five or fewer years old so then why should i mean it's so i think that's a very fine reading because usually when you make statements in a complaint you're stating the facts that support your case so if you meant that to be what that paragraph was supposed to mean then i think it should have said although mr roberts disagrees with the assessment of the dates duffy thought they were half from before and after after instead of just as duffy explained what happened in the house from before and after after and duffy's the guy who did it so why don't we take that as the facts that the case is about mr roberts has never contested that that is an accurate recollection on his part that's what he remembers mr duffy say and his testimony is consistent in deposition to that effect as well but the question then is is that ended mission by mr roberts that mr duffy did in fact destroy a certificate of origin that was five or fewer ok so even if it's a say let's put to the side for a second whether it's additional admission why isn't it just evidence at least through from duffy that this is actually a document in the right time period ok one it wasn't cited to the district court for consideration although it's true that they have the burden if you're sending if every signal is that this is not up for grabs because it's in the complaint and i think it was also in the deposition that this is what  same thing about this not at all and in fact the defendants didn't psyched up his testimony and fairly construe duffy's testimony is i don't know probably have to run in favor of mr roberts in every respect all inferences has to run in favor mr roberts not the moving party and in fact it needs to be strictly construed against the moving parts but it can't be the case that if you destroy documents so there are no copies left now it's the other side's burden to somehow show what the dates on those documents were i mean there's something very odd about this like they're saying look we know you to start a whole bunch of documents we think that violated the law and we think that means that your employment contract says if we had caused a fire you and that's what we did i don't you need to come back and actually have some evidence the other way i mean maybe it's a bird in general but i don't understand how that how they're supposed to meet this burden when you've destroyed the documents and you don't even deny that you've destroyed the documents it's the it's their burden to a document that was five or fewer years old was destroyed and how are they going to do that they could have cited mr duffy's testimony and simply asked him what he did and he says i don't remember they're gone but i think they probably were in the five years so why isn't that what they had to do so let me let me read to this is a page sixteen of the reply this is an examination by counts for defendants with mr duffy on the stamp if you recall how many certificates of origin were shredded answer to and what the available evidence about what happened here they didn't cite this in their moving papers for good reason it's inherently uncertain and ambiguous with respect to whether or not in fact a certificate of fewer years old was in fact destroyed they're the ones moving here accusing the client my client the plaintiff of violating the law question doesn't matter whether actually was whether the company thought it was i'm sorry said again as a matter for this purpose whether there actually was a legal violation as to the or whether the company thought there was no violation has to have occurred in fact because subsection one of the employment agreement on page eleven eighty six says willful violation i backed the context of the the clause suggests that what the contract was really getting at was theft bribery and embezzlement set those aside they have to prove that there was a material violation of the law i have a question even if you were to win on those grounds doesn't isn't there an alternative ground for the summary judgment isn't the fact that these assets there's a asset purchase agreement and there's no question the clues were destroyed isn't isn't that grounds in and of itself no and the reason for that is if there was no legal obligation to maintain these documents they are not there they aren't the assets of the whether there's an obligation to you know if i want to chair there's no obligation to keep the chair would you destroy the chair haven't you destroyed one of my assets the short answer is the asset purchase agreement describes what assets are and it's very hard to construe a piece of paper that doesn't have to be maintained as an asset that's covered by that contract it would be a candid firing somebody for cleaning up his or her desk of papers that they no longer need but these are records of things that occurred so how are they not an asset and that's another problem with this case those documents the alleged c o o's that were destroyed were r ed admittedly invalid from the outset and issued in error we undermined an entire idea that there was a retention obligation in the first instance because they were invalid but but aren't aren't they records of what occurred in other words as it is a business don't you want to keep a record of what occurred especially if you may be in violation of the law but no and the reason for that is in excerpts of record  sixteen ten sixteen ten the defendants themselves tell the clients who received the c o o's they're no longer valid and should not be used to document was just kind of on that well i think it applies to the five year issue as well but we cited to the complaint the second amended complaint the admissions in it in our summary judgment motion for the proposition that these c e o s at least some of them were within the five year period because they were post acquisition the acquisitions august two thousand and twelve the shredding session occurred in january of two thousand and fourteen so about a year and a half later and we cited  where mr robert alleged that the korean customers had retained copies of the c e o s at issue because they had an obligation to maintain them within five years he's alleging that we could have gotten them from somewhere else because we were still within the five year period nothing paragraph forty six paragraph forty seven is the other admission that we talked about with respect to what mr duffy told him at thirty that mr duffy told him at the time of the shredding that at least some of the c e o s were from after the acquisition which would make them within the five year time period does that combination of facts overcome the issue of willfulness i don't think that there is an issue of willfulness and i tell me look at the particular clause the material violation of law clause that we're all lying on there isn't a will does not appear in that clause i don't believe but there's no question in my mind when you actually ask someone to shred documents and they shred documents that that's what will in addition to those two admissions we have mr roberts admitting his deposition in this is heart of the summary judgment record that this is what duffy told him he well he's making a distinction between when we when we made the statement in our brief that this was the five year that they were within the five year we only cited to the point but the deposition chinese that appears to be the case and of course you can affirm on any basis supported in the record and this one clearly is i think the other thing that i would point to on this five year argument is he cited your sixteen ten which was our my client's letter that was sent three months later to the current customers where we said these c e o s were issued in error because mr duffy should not have signed them on the kind agora letterhead and there's a list of them it when we deposed mr duffy he thought that he strutted to this was a couple years later that was his recollection of the deposition so there is some inconsistency in the record between what mr roberts your period so you know at the end of the day we just have a complete divergence between how this case was litigated below and what we're trying to argue about on appeal we think that otherwise that's really our human right i mean you're not really i think it's both your honor i think there's a reason they didn't make the argument because the facts so clearly established that they were within the five year period and so what my point it seems to be trying to rely on is the sort of hyper technical working of the summary judgment standard which i just don't think applies here you know we have an extremely material violation of law hundred thousand dollars per penalty under fifteen c f r seventy six four point three we're talking about the potential denial of export privileges for a company that's in the excerpt and is his argument that there really wasn't any obligation to retain these documents because they were not the right documents yet that's not what our expert if you look at the denise walker expert report which is quite  long you will see that she disagrees with that and she has she was in the export business for fifteen years the regulations are dense here but i think the one regulation i would point the court to is fifteen c f r thirty point one zero which says all parties to the export transaction shall retain documents pertaining to the export shipment for five years from the da export that's a very very broad language and what position when being a fraudulent or improper documents pertain to the needs of the expert well if it's custom to come in and audited my client your honor they would wondering why is it that we have theos that were issued in april two thousand and fourteen for a transaction that occurred back in may of two thousand and thirteen and you maintain all of the records  show exactly what happened and there is a provision in the c f r i don't have the code in my mind right now but it's in this walker's expert report that says when you have falsely issued docket documents related to a transaction export transaction  incorrect that the penalties for that will be mitigated if you promptly and voluntarily correct it so one could certainly imagine why you would want to keep the entire paper trail  the the old ones that were incorrectly issued by mr duffy signing on behalf of ken agora why they were corrected and then the corrected ones because you want to be able to show that mitigation of the harm in the correction of the documents and as i said thirty fifteen c f r thirty point one zero says all documents for caning to the transaction so i think it's a very broad provision here and frankly your honor my client doesn't think that the answer to fraudulent lee issued documents is to shred them that's not what they wanted to do and they believe that there was a material violation of law here with substantial potential penalties it triggered a audit that went into absolute hyperdrive by the king and spalding firm once they learned about the shredding there were serious serious consequences here that this company was trying to avoid in the last thing that they wanted was to continue to employ an individual who thought that shredding documents was the solution to a problem i'm happy to answer any other  is case law about why you have to cite but the driving force on that issue your honor this is federal fifty six c one eight it expressively imposes the obligation that the party quote must and quote saying that i mean certainly has to be attached but whether it has to be cited as such and if you look at the advisory committee notes from the amendments in two thousand and ten they make clear that you've got to cite it because you can't throw eighty page eight hundred pages in front of a judge and say it's in there somewhere that's unfair to everybody i think we can get that but with respect to the rebuttal issues the walker report pages thirteen eighty three and thirteen eighty four she says that it was duffy's signature on these certificates that required the defendants to retract them and withdraw them and replace them so this entire problem isn't a document destruction problem but just the fact that duffy put his name on these certificates and that's what that's what made the and that's why there was tragic correct but that's what also made them invalid and there's nothing in the record to suggest that these regulations require the retention of documents that the defendants admit are invalid