they are dietz versus ryan and charlton versus state of nevada those two matters are submitted on the braves and record case the st case for arguments today is counted versus credit suisse group and arose from the alleged plaintiff's counsel including me and mr conan the alleged failure to disclose an affidavit from the key witness that we obtained during the stay of discovery so while discovery was disclose that there was a stay of discovery as soon as the stay of discovery was over a year later that was disclosed to opposing counsel nothing of going on in the case prior to that other than a motion to dismiss and of course it was  the st witness being deposed was this key witness mr miller and he they the defendants had the declaration thirty days prior to the docket of the deposition and and after literally within a day of the close of the opening of discovery the lifting of the state of discovery the after receiving the affidavit the defendant's filed a motion for reconsideration of the motion to dismiss judge large said no at least five times bring court and mr conan whose office the interview took place was was hell they were they were ordered to appear in person there was no other issue regarding what sanctions were included or any other type of notice other than literally no fi don't think there is anything further we could do to preserve that issue we've caught we've continuously from the beginning of this and from the inception of this case when the court st came up with this punitive sanction award of thirty thousand dollars we objected every single time that there was no there was no basis not only for not only basis for him no basis for imposing such as the banks but that we were entitled to criminal due process because it was clearly a following and the original order there's no question there is that it was actually a criminal fine it was the the judge stated it was punitive and then suddenly six years later  is is your argument that you haven't waived it in this court based on your your argument that the courts basis for imposing the sanctions as changed at eighteen in your brief and that this  how it how we could have waived that argument i think it's i think it was all we do is argue that in every step of the way including in this court and in this court we've argued the same exact thing that the that the that the sanction that was operational overhead of a court onto a defendant on to an attorney as a sanction and even if the coroner and i cite the blue case for that and for the for the belt for the th circuit court of appeals but even if the court were to adopt that that some portion of court judicial overhead for the st time could be imposed as a as a compensatory sanction to the court that does not excuse the entirety of that shifting of overhead to on to the plaintiff on to the plaintiff counsel me and the rest of my colleagues because there are literally no findings to support how the court got to that effect that sanction and of course judge bennett thirty thousand dollars fine is exactly what the court had determined in the st instance that it was that was punitive and purely for punitive purposes to teach us a at was in the st order the nd order became after this court reversed on that on the issue that we were entitled to criminal due process if it was not compensatory that morphed into a completely compensatory find based solely on shifting the overhead of the court which was never described by the magistrate on to the attorneys in this case and i want to point out as the court in the order for supplemental briefing stated the good your case t about having to calibrate sanctions to the what would the but for call harm caused in this case there was no harm caused the only home by the by the actual withholding where the failure to disclose that affidavit wall the stay of discovery was in place and no one ever claimed that they had heard attorneys fees as a result of that act all of the sanctions the criminal sanctions the fifty seven thousand attorneys fees alleged failure to disclose that affidavit and for example if they had taken the deposition and had to retake the deposition that would have been at least something to base to hang your hat on in terms of finding that it was a sanction but that wasn't the case here this was solely and fully the costs involved in the it took the defendants filing their motions for sanctions and the attorneys defending those motions and seeking to set aside  should be remitted to the district court unless this court is willing to entertain reversing on the attorney's fees award i suppose even then because it's so clear that the attorney's fees award is not is not part and parcel of any kind of harm under goodyear as in goodyear there was a do over here there is no reason if we're looking simply at the criminal fine there is look there's no reason to set this back to the district court we've been back to the district court twice the court could have been clearer on the issue of whether or not this was a criminal sanction and if it was to to give us due process it clearly now is a criminal sanction and it's in the same exact amount if the court were to remain for further findings in a and a and a criminal and get an a and directing the board to give us criminal due process we would need an independent prosecutor we would need proof beyond a reasonable doubt and frankly your honor this is been around this is been  as as the court may have recalled this was not even this even was we were exonerated by the various state bars who had mandatory self reporting for the colorado state bar were guarding m conan actually found he doesn't he had done nothing wrong and and saying and the california state bar didn't same same for me so we're asking the court reversed and that's it ok i think your time is not let me ask my colleague is a version of judge bennett's question other than the two pages that he pointed to you you argue anywhere that the district court this go  round urged in characterizing the sanctions as well i think that's it was look i think that's in the entirety of our brief is that the that the the court the district court adopted the findings of the  magistrate and and then and then said yes i think those are compensatory and then despite the fact that in the prior quarter he said it was partly compensatory and criminal when we appealed that when we appealed out order implicit in that in that order was the magistrates ruling which the district court with very little analysis adopted so when we appealed we're appealing that order and i so i i'm not sure i understand how we would waive