my name is brian palmer counsel for appellate i'd like to reserve three minutes rebuttal cuts except to make my first question i just recently asked the clerk this is this is a second to p o i understand the administrative rules we're going to assign a second appeal to the same panel as the first appeal certainly is qualified panel but i didn't know whether that was a procedural requirement that we should meet or not meet just one it's not it's not required the i don't know the process the original panel under such circumstances has the option to do it there and they say record in the first trial court there was an attempt to put three different affidavits into this court of appeals well that sentence comes at the end of a long paragraph where they're talking about exhibits d e u nap and something wasn't copied to something else right up the thing in front of me and then they sort of snipe at the defendant saying whether it's inadvertent but they say it's the district court's choice whether to wade through this this confusion in that i read the confusion is everything above it and so the district court in this case did choose to wade through it and i understand you certainly i mean this court knows how to make a limited remained there and i've written it and it certainly could have done and it didn't and i didn't and i don't i guess i misunderstood that i didn't realize it opened it up for there was new just new new affidavit from a new witness that wasn't party and extensively larger affidavit and the one concern i had was that the trial judge actually didn't even allow us to question the witness kirkland about any of the three exhibits that we're tempted to put into the court but we'll move on with that because it certainly seems to be within the what you call the new exhibits are the revised obesity proposal the downs affidavit and the other conrail bills is that i mean i made a chart of what i tried to make a chart of what came in at which point and those were the three that to me didn't look as though something had been in earlier but the current affidavit contained sixty six new pages and a completely different section of taken months before actually even happened so he certainly existed they were aware of it but it was a brand new person that wasn't even contemplated at the first time the summary judgment was was made by the defense the significant point for the plaintiffs though  is that ultimately when we look at the affidavit all of the versions whatever version we look at they all say essentially the same thing these appear to be documents of the my program these appear and actually the beginning that you can't overlook the beginning of the language the language she says is to the best of my knowledge these are documents and we were allowed an opportunity to to post her and she said i cannot say the critical documents document and document k g b and the sheet that actually showed this was updated ever got to her department those are the two documents document l being the actual bills they do have conrail headings on them but she she also testified and there's extensive cross examination of run this guy needed to know the details or help was done how it's done your honour's is a boy or comes to perth with a package of documents and said would you verify this and then she goes through and checks the documents one by one and if the documents are in fact there she doesn't ask why they're there she just in fact doesn't ever stand all the documents are there i will start by saying that appears to be to the best of my knowledge these are the part of the program then she concluded i'm getting confused about preparing for this affidavit or at the time certifying things to get payment stamp it and it would say received by the hiring real development commission or she would sign it make some notation so she's able to independently look at the documents specifically exhibit l and k and say that from the face of those documents those are not documents that she can verify came into her commission they might have just just help me here because there are different labels the two that i've been looking at are conrail corporation accounts receivable that has the conrail logo on it and then there is a schedule attached to it one portion of which is the code number for all three is that is are the type of bills that's what she says that it is this k rail accept that sell ok that's what i thought but i wanted to be sure and then what i have been thinking of his case is the one page the says ohio buckeye cross but program document is i guess this would be the critical document that would or would not evidence payment on the face of this document it's been altered defense wants to call it a typo we have no evidence whether it's a typo or altered when it was changed how it was change changed it did it change before it got to what is what is the alteration or the type of relief and the vendor number on top the second numbers are obliterated it looks like a one nine one six eight  if you look at the bottom of the document it clearly says one nine one six one six one six eight zero zero is there evidence one way or the another who those numbers refer to that's a great point your honor susan carpenter was not able to identify that one nine one six eight zero was in fact conrail by using circumstantial evidence we can assume that's correct because there's nineteen of these bills and eight sixteen other ones have the  fifteen other ones have been one of the household help me here are you seriously arguing that these are in some way forward or are for other costs bucks that aren't what they say they are or are you just saying look it's up to them to dot every i and cross every t and if we can undermine it we don't have to have any alternative theory not in any way suggesting that they're forged for some sitting simply suggesting that under preemption they have a duty to prove that it's paid there's no question the majority of prospects in the state of ohio get paid to federal funds is no question but are really nothing more than pieces of evidence for the court to review and decide whether it wants to take those as evidence in order to make their determine the court's determination they are pieces of evidence but these are follow but i think the fault in terms of the analysis of judge katz says he learned judge the fault i believe in his analysis lies in his statement that he's that kirkland says that these appear to be documents that were in the  documents are the records of some particular agency right they were given to her over from the lawyer and she was soon maybe he got them from the stor produced anything from the archive people saying yes on this day i produced these documents exactly right and that's my point they come from some closet somewhere once again this mission this is an evidence talking about here now is whether this is evidence whether she whether the district judge should have reviewed this stuff or not when i it's pretty clear that judge katz immediately allowed them to expand the record thought part of what we thought but we don't think it even gets close to meeting it now had had these records come from the highest historical society as justice white mentioned had she been able to verify with her signature a stamp  marking some kind of identification here's an important point to judge by as you brought up that one exhibit about the the one in question that has the second page the witness was not able to the first page was the type of document she received and she identified this looks like the type of documents we would get the second and third page she could not verify and the page that iran was was referencing that has or crossing on it the witness who claims personal knowledge couldn't true eight nine to the second page to eight nine three and two eight nine for the one that actually identify is the crossing by number she specifically said she cannot identify those those are not required by the program and she can identify those pages so matter of fact would have made it sounds like his are putting documents in front of her and telling asking her to sign these to her best of her knowledge but when she's actually asked the best of her knowledge she says i can't identify dispossess if it document  critical document because it's the one with the crossing in question the same thoughts into question is there any doubt that this two six two zero six one is the crossing in question no there's no doubt that is  hundred twenty nine zero seven with the exact number with exactly eight hundred forty six dollars indicated right becoming from the defense and they defense knows what the numbers that need they need to add up to  there's no verification that she got it and then this and then the actual exhibit came there's no stamp or anything that she got this either so they're creating the documents thank you time for rebuttal thank is what the district court found that this invoice is authenticated because it bears based sign namely the conrail logo and is reported to be done in the course of business so there is no need for any we don't know anything railroad lawyers have been amassing the documents necessary to prove the preemption defense precisely because you need to assemble lots of documents so the trial lawyer for c s x has in his possession the relevant documents that a page is i believe it's three zero three nine to three zero four zero in the record you will see plaintiff's counsel saying where did these documents come from she says they were presented to me i think that my lawyer the lawyer received them from the lawyer preparing the affidavit which is exactly true it's all she has the only thing she can tell us is who gave them to her that's all that's not all she told us your honor she looked at these dots and said yes this is exactly are ways in which documents can be authenticated and i don't understand why there would not be something on the record from the lawyer saying yes these were in the files yes  came from because there was no dispute the witness said these came from the lawyer plaintiff counsel didn't dispute it we certainly didn't get it because that's the truth and what more do we need to show where these files came from other than it's not enough to be came from the lawyer the lawyer has to say where it came from iran or know the rule if you're honest questions about authentication and get them get to your exact question the moment you just back up for a second if i may documents can be authenticated in multiple ways one way is without any extrinsic evidence whatsoever if they are self authenticating which in fact these invoices are under nine to sub seven and the district court correctly found because they beare the logo extrinsic evidence in multiple ways for example they are authenticated under nine zero one b one which calls for the testimony of a witness with knowledge miss kirkman testified as that page three one one two of the record honor they were also independently authenticated under federal rule of evidence nine zero one the sub for which allows authentication through the appearance contents substance internal patterns or other distinctive characteristics of the item taken item detail that corresponds exactly to the figure on the invoice they are according to miss corke when directed to the proper person at dot and moreover when you look at mr han a finger yes your honor and when you take all of the invoices in example el together they total eight hundred ninety two thousand dollars and hundred twenty one hundred twenty two thousand one hundred twenty four dollars and we have been the testimony and the documentary evidence from mr downs who stated that the state of ohio dot in fact reimburse conrail for precisely that amount eight hundred ninety two thousand one hundred twenty four dollars really got i mean this whole thing i read this correctly the old road crossing worth millions but that's what preemption is but you're saying we know very well that there's this big program with eight hundred thousand we know that there's a subset of nineteen thousand yet and we have what purports to say that this number that is the authorize the program and in fact dispersed the funds to dot we have the exhibit k which is the actual installation form this is an form and this curriculum testified with respect to exhibit with that is that she doesn't say that in fact i got this it's just the kind of paper that yeah but of course like there are of course authentication is a very very low standard is simply have to be some evidence  of evidence they don't three sixteen because they're more than twenty years old it's precisely the notion behind the ancient documents exception to the hearsay rule is that over time people's memories will fade people will die people will be the employee of the institution would be useful to find out where that came from your honor i know exactly where came from i'm telling you it came from our files there on c s x is files there is no mystery in the deposition i got as the heir to  rid of the file she couldn't take these things out of her own files because they don't exist the only place these documents exist is in the lawyers files and that's exactly where you would expect to find them if they were authentic so we satisfied that prong of testimony of a witness who says yeah that's that's what it should be which is what we have here through all of the circumstances the appearance of the contents and we look at the mass of evidence that we provide we provided the contract between dot and conrail we provided the federal authorization for the construction pursuant to that we provided the invoices we provided the installation sheet each of which cross references the other you see consistently throughout the reference to the contract number the federal funding codes that were used with respect to that contract those are the two things and yes multiple documents refer to the road number and all schroeder by name moreover we have the testimony of and good documentary evidence provided by mr downes who says that conrail was in fact reimbursed out of federal funds for the sum of eight hundred ninety two thousand dollars and downs they they made they raise a point as to whether well the district court could sort through all the confusion at the time of the polak but they actively argue that there's new confusion after that they shouldn't sort through it so talk about your own why the downs affidavit is in there and what's installed as the testimony and the documents suggest but they're really the this court in this previous decision remaindered i'm quoting now remember the case back to the district court to consider the issue of federal preemption in light of the evidence properly placed on the record this court in that same decision found that there was no evidence properly in the record on the first go round through our inadvertent failure to file the affidavit so the  not conceivably mean that the district court was to consider preemption in light of the evidence that was properly placed on the record because a court had found that there was not so surely the scope of remained is for the district court to consider federal preemption in light of evidence that remained is properly put in the record and that is indeed exactly what the district court did and having gone through this once before and having made a few sloppy errors for which we apologize to this court and the district court we w make sure that we dotted our i's and crossed our t's this time around so we're extremely careful to get all the documents we thought would be necessary and sufficient to establish federal funding for the crossing which we did the additional pages are instead of only presented the invoice for the road crossing we presented all of the invoices from conrail to under the buckeye cross block program and then got the testimony in the documentary evidence from mr downs who is responsible for actually dispersing the funds or whose office was responsible for dispersed pons and showed that indeed the amount shown on the invoices submitted by conrail equals exactly the amount that the there is an eight percent retainer held back by the state on each envoys up until the very end so as we submit and we'll use the invoices or to the penny but they're holding back a percent of the amount that's paid on each invoice up until the very end is eight percent less than what was in boise at the very end pursuant to the contract page five of the contract which is in the record the state said ok you finished the work here's the eight percent that we were holding claim the same thing with different documents some missing some not missing i think that question speaks for itself the eight hundred ninety two thousand one hundred twenty four dollars were not disputing that that wasn't spent but david has instead of your explain that one of the invoices in this case didn't bear conrail number at all conway are we assuming collectively the conrail was one nine one six eight zero because fifteen or sixteen of the invoices in the file said that number one of the invoice that was said one eight zero eight one zero four nine thousand four hundred ninety dollars susan crippen testified on equivocally if it did not have the right number on it we would not have paid it my department would not have so the numbers don't just clearly add up and he has not explained that the how when he used these changes these all three patients are made the other thing that the council said that i don't think is in the record he talked about these records being alterations i see the one up six eight zero at the bottom all with anyone nine it looks like fun thank you sir three of them have that but the point is the question is if the documents are reliable on their face we don't have to question further or at least there's there's an issue of reliability when there's not an issue that the document itself doesn't even have the right number on it she needs is she being misquoted needs to answer the question i know where these come from i want to address something that councilman said i don't think is in the record he said this some the historical society there is no testimony from her that we purge the so we have to use the lawyers records and it sounded like he was creating that inference for the court tests historical society would be the place to get these it rather than see a sex and as judge work properly pointed out if the lawyer was going to bring these documents before this court they should have brought somebody from c s x to say i had these in the ordinary course of business nothing is more fundamental for the he is that someone made pain in the ordinary course of business you don't have that it's case you don't have any testimony if i know that the bills that i'm trying to end up to are ten dollars and i need to put them in evidence i can come up with ten dollars bills and by the way the numbers don't even ate up here so argued that first of all that these records are there's no foundation for these records these are records or hearsay and they could they're not contained in the finals of her and she said that i can identify him and all of this before just cats and  say they appeared to be the type of documents we would have received and on information and belief and to the best of my knowledge they are without a scintilla of evidence that in fact she got the critical ones