before you we begin i just want to inquire of you if i may and ask you about your own go ongoing involvement in this appeal and what seems to me  fairly possible potential for a conflict of interest with your client have you do you have anything you want to state to the cord or have you talked to your client about this i'm sorry has it made that argument on appeal and i was just curious because there's also a question regarding the fees if we were to rema and it seems like you and your client have incentives that may be directly at odds with respect to that so and i think you're the sister of the c e o is that correct that's correct you're on be happy to address the first  i think of my kind does not have that incentive because as a matter of law actually blaming counsel is not a legally valid point and there is many cases that the  party who hires counsel knowingly cannot then blame their counsel if something went wrong but the more important point your honor is that we believe the dismissal is everyone is not because of anything they did but because of waiver from my client i said my clients are my client scuse me are fully aware of everything that has happened in this case we have we don't disclosing privileged communications of course we have full discussions about all implications in the case about arguments that were made ok can you pause for thought i want to ask a specific thing of course so about the attorney's fees if we believe that we need to  against a lawyer and undercuts they could be awarded against the client and if they can only be awarded once there's a direct conflict between the lawyer who wants the client to pay and the client who wants the lawyer to pay that is one of the issues in the case right now so that seems to me to be a conflict that you would have had to inform your client and get a waiver when we started this conversation you said no there's no conflict at all so if we disagree with you i think there's a conflict it seems like there needs to be a waiver there there is currently no waiver we did not believe there was a conflict and i'm of course if that's a concern for the court i'm happy to go back to a client and discuss the issue of the waiver with them but that's certainly not the has i don't have a waiver today my client is not here in the courtroom but i can certainly bring them and how can we proceed with you representing a client that has that we have an obvious conflict i don't believe your honor there is a conflict you know our view and so unless we believe there was something wrong that was done if there was something wrong that was done in the case certainly doubts when a conflict may develop but if there is no such belief i'd i don't see how there could be a proceeding and certainly we would have addressed it right away and i'm happy to get my client in the court you know if the court pleases and the court can speak directly to the  please come forward i wanted to confirm with my colleagues  the oral argument so proceed thank you are and i apologize if i wasn't prepared to answer the question as the court may have wanted i can certainly address and if the court wish me to find something subsequently ok all right so then just go ahead and pursue i just wanted to make sure that was so thank you for inquiry no problem your honor so i would like to reserve as much time as possible for about oh of course subject to the court's questions i anticipate making only a brief presentation will reserve fifteen minutes i would like to hear you have yes oh yeah oh i read you have just go ahead i'm sorry i didn't realize we were already down supreme court cases establishes that terminating sanctions of any kind are an extreme remedy to be imposed only in two situations the first situation is when there is a total failure to provide discovery and that was the rule establishing hum unpacking by the supreme court and the total failure did happen in this case but it wasn't on the side of loop ai the total we're late to a material failure where the part he has failed to provide discovery that is material to a claim or a defense in the case in the case a claim over defense advance by the party who obtained the discovery order and even in that situation or honors the supreme court case law is clear that that type of sanction can violated and the supreme court has held that those two requirements are intended to address both the general due process concerns and the rule in harman packing and that in particular in company the box seat is referred to as the specific due process requirement which require a court to tie that sanction to tailor the terminating sanction or the other type of s where the factors that allowed the district court and the plot court to show that the general due process concerns were satisfied and it also then went to address the specific factors in that particular case sanction was just that mission of certain specific facts that were at issue in the particular the fair you are getting there can never be a terminations of the case i'm arguing that there can never be a termination of the case without the l king that the supreme court has required i believe that there can never be a termination of the case unless there is a total failure of to provide discovery and there can never be a total termination of a case involving claims against a variety of parties unless the court specifically ties the termination of a particular claim to the discovery that was and provided and the discovery that was a piece shoe in the claim address in the discovery order allegedly violated i don't believe you are nurse i think in the last two years i've done a lot of cases on this point unfortunately i'm sorry i couldn't find a single case where we have a situation where the judge on its own without a party asking for it goes ahead and he sh terminating the entire case all of the claims against all of the parties without even explain which particular order was violated what was the claim or defense at issue in the particular order what discovery was missing that we didn't provide that that made it impossible for them to address the claim or defense and they returned to company in the back seat because in that case the court specifically found that the court took extra you i mean because you were representing the client and the issue is whether there were violations of discovery isn't at all the same thing whether you had done the if you were the lawyer so if they violated this discovery orders it was you so what's the difference what would you have i think you did argue we didn't do that it didn't matter all these things you're arguing now aren't they the same kinds of arguments so i do believe so for a couple reasons here owners i think my understanding of that  he didn't address any aspect of those charges i had no idea that he was considering provoking the pro hoc i had no idea what that would be a legal basis for that would be and they still believe that he did not have the power to revoke the prohack because even on their inherent power you know i don't really understand how you can say that the order to show cause listed a whole bunch of orders about improper conduct during depositions listed improper responses in iraq there is listed all i mean on and on and on listed all these things that basically you were accused of doing i don't understand that there's a difference between those and the ones that the judge then talked about your i would respect sanctions or it just provided providing a bullet point list of orders doesn't tell me anything i certainly would have been able to address very much detail what he said in his terminating sanctions or sanctions he was considering yes were your were your rights i mean really impinged by revoking the pro hockey beach status at the end of the case when so whether you got what you claim sufficient due process or nod your you're probably status would have been over anyway your honor i was greatly career that sanction being put in front of other courts which for reasons have nothing to do with it's been greatly damaging and i think the case law recognizes including in call that a detail what the judge believe i did wrong so if we just vacate the pro hart revocation that takes care of that right i mean if there's remained it's nother issue but if the case is over here today i think your honors i understand that it is so reads you know way that makes us look very bad and all i'm asking the court here today is for furnace and for the court to review the actual record important part of the case and i obviously was greatly personally damaged by the sanction but i'm here today really for my client and you are without i will you're a loser of the bell so yes thank you thank you may please the court michel murderess for the elma wave defendants your honors this case should have been a simple trade secret and tortious interference case but it went off the rails for two reasons first the plaintiff would not identify the basis of what trade secrets wave allegedly misappropriated and and what tortious sachs wave allegedly committed to steal loops business second unfortunately loop and its counsel simply would not conform their behavior to comply with the basic rules and requirements set forth by judge review and judge gallium as required by the local rules of the case turned into a literal nightmare over one thousand docket entries over one hundred approximately one hundred and seventy five of them socket entries were orders by judge where you and judge gilliam that's almost twenty percent of the docket judge gilliam and judge rio exhibited extraordinary patience and trying to keep the case on track and if anything can be said about them maybe they tried too hard because the argument essentially is more sanctions should have been issued should have been issued earlier earlier and luke therefore didn't have enough advance warning of the perils and thin ice that it was on that's not the law  the fact that judge review and judge billion said time and time again that the behavior is unacceptable that the orders must be complied with that the discovery must proceed for n does provide the requisite warning and opportunity for loop to understand that things needed to change and needed to change quickly we're not talking about minor misconduct and that those cases make clear particularly the valley engineers case that a pattern of discovery abuse is sufficient grounds for dismissal order and that is what we have here i want to jump ahead to a question that i want to ask in some pointed if you want to put it off that's ok with me when when assonance people when a criminal case two counts impose a sentence on count one in a sense on count  i'm messed up count one they don't just vacate the senate's on count one it's called the sentencing package and they look at both counts they send it back to resign it's entirely so here's my  question you've got a district judge it looked at this and said i'm going to terminate the case i'm i'm i'm not going to impose any attorney's fees so it seems to me that at least on one view the district judge said i've got a great just misbehavior here's how i choose to sanction so my question to you is you you want us to disapprove the fee part in it a sentencing package in a five aka if we vacate the don't we have to vacate the terminating sanction until the district judge think about the whole package again that's an interesting question your honor i think i would go to the principle of severability that exists statutes and in this case the turning fee issue is completely several from the question of the dismissal sanction there are two stiffer insets of sanctions one goes to whether the case can continue and the other goes to whether the victimized party should receive compensation compensation for it we are a good answer the fees under the california uniform trade secrets  he is required to spend chickens to consider the issue are a lot of work i mean i got in the summary judgment papers and it was pretty clear to me that if i could have sorted it out in a couple hours i'd have been ready for this hearing but it was pretty clear to me that it wasn't going to be just a quick job it was going to be a lot of effort to sort all that out the rule of the sanctions issues are you do not require the room anything like that summary judgment level of inquiry the sanctions issues go to the quick go to the question of whether any evidence will two things number one whether any evidence has been presented to show the claims had a basis if some evidence exists to support the claims some facts to show they were brought in good faith that's it it's done that's for rule of and for set for the nine hundred twenty seven claim  gilliam certainly knows those facts perfectly well and that's the area probably where there is some overlap so here so what standard of review do we reply to the rule eleven question and and what are we actually reviewing here are reviewing the merits of the motion are we review in the district courts a decision to decide the motion was meant i wish i could give you a one sentence answer the questions were given in fact it's a complicated one the ju courts must give an explanation for why fees or costs are not permitted number one and number two the time to ask for fees or and costs is after the decision is novo under its inherent discretion to consider the issue and to settle it you have a case that says that i thought it was up to the district court's discretion not ours if they just report doesn't exercise its discretion  question earlier about the sentencing package and plainly what you've got an argument that we should uphold the dismissal and send the the question back if we decided that it was wouldn't it be reasonable for us to read the district court's as you said sue a spontaneous decision to not grant fees or costs either side as some sort of slap on the wrist to your side i mean it given everything else he said isn't it reasonable to read that as him saying there's a little bit of fault at least on both sides it's plausible your honor we don't know because he didn't say that is that as one possible explanation other possibility that possible explanation is he knows the volume of the litigation that occurred and knows that loop incurred an incredible drain of resources as well and wants to cut the bleeding for everyone another possibility is judge suggestion that having already exercised a very serious order that kills lupe's case judge gilliam felt enough is enough and i don't want to go any further and yet another possibility is  if we were on the attorney's fees if it's in piece of discretion are reviewing the district court's decision that each party baird's own costs or are we reviewing the district court denial of the motion for attorneys well there are three events that occurred and so we need to break them up there first was the ruhleben motion that i am away file filed in the summer of two thousand sixteen judge gilliam determined that that was rendered moot by the terminate the termination order it's plainly and correct rule of an sanctions aren't rendered moot simply because the case is dismissed for discovery argument would have been premature they have to be brought after the decision is is rendered so that is a simple legal error that would need to be taken the third the third issue is what happened after the terminating sanctions were entered and there were waves filed a motion for fees knowing that the court of the already denied fees and judge gilliam said oh no this is really a motion for reconsideration and if so it's not f proper form and it's too late because i've already ruled you're not getting fees so that wasn't appealed that was not appealed correct because i did one of the parties by on our side judgement call and that's because the appeal  e order denying fees had already been entered so it was essentially a redundant motion and didn't do anything more than what judge gilliam had already ruled so that was not appealed then s the other set of defendants filed their motion for fees and that was denied by judge killing him again on the basis that he had already ruled that fees should not be denied that last motion has been a and is before you might be my client is not a party to that particular motion so again the basic options are you could consider it on several were saying here and even in or briefs here that she does not respect in the knowledge of the local rules and the standing orders that the dysart court judge issues and that the magistrate judge issues and that is the reason why this case ran off the rails she would not cooperate in the sky every but her fundamental position that she will not abide by the rules and the orders of the court to operate its court room is why change needed to be withdrawn the box where she checked on her application where she swore to abide by to read and abide by the local rules was essentially withdrawn by her she's taken the position the local rules don't apply and so judge gilliam properly unchecked the box that's effectively what happened it is almost an administrative act to given her her her position and her behavior in the court it's not a sanction it's not anything more than simply saying you're behavior shows you're not you're not living by your oath therefore we which we didn't judge gillum go on to say that he would not allow her to be pro hockey each in the future and and in those and that is not an either because it simply saying every time you submit a pro hockey che application before me i'm going to reject it because you're not going to abide by the rules and the ninth circuit laws clear that is not appealable because it is not a sanction that before that's final in light of what she has asserted is damage to her reputation didn't some ways i would say yes in the sense that if she had something to say to judge jillian that would somehow say i am wrong and i will should have the opportunity to say that to judge killing him but if her position simply is i want to defend myself and my honor and everything i did and my right to disregard the rules and orders then the answer is no because that is not a valid justifiable excuse for maintaining pro hart feature status i see my time is almost style i want to trust a couple other points on the no discovery  we can't say this often enough i am away for stipulated over and over and over again that all of the discovery being produced below fifty four thousand pages of documents five or six  from italy all employees of the only of italy defendants were hearing both on the merits and jurisdictional discovery there was no separation nothing was withheld all of the discovery was provided below that was  was ordered and then finally the notion that no party requested terminations the simply not true there are three or four instances in which the wave specifically by the summer of two thousand and sixteen was telling the judge review and judge gilliam that the time has come we can't do this anymore and the rule sixteen f motion that i'm away file specifically requested that relief because the case simply could 't be tried not when there were one hundred witnesses most of whom in never been deposed thousands of exhibits tens of thousands of pages of documents and no identification of any theory upon which why bill it was being base i just want to make one note before you head back down you might want to tell the lawyer that handled the case is below it's not ok to tell opposing counsel to shut up or to bray witnesses during breaks and some of that on your side of the case that wasn't ok i understand that your hon regarding the contact it's it can be found that there was bad faith conduct such that the cuts i think that's something the district court would have to decide if you have any case that says that we on appeal can make that determination no your honor i do not i just want to bring up that point to this very day loop and says that the discovery and trade secret disclosures were proper that there was nothing wrong with them and hence the t s o s proper i would direct this cork to focus on simply two items in the record which would sufficiently support a dismissal with prejudice that being the trade secret disclosure the absolute failure to disclose trade secrets and the failure to acknowledge that it did not comply with the court's made three twenty sixteen order to serve supplemental discovery requests out and out loop refused to supplement those discovery request ultimately the court had to ask did you do it and they said no because we didn't need to that supports the dismissal under rule thirty seven this case had such a breakdown the council couldn't even meet and confer there was a motion filed by lupe claiming they met and conferred i pointed out that they did not this is the misrepresentation in the case made directly to mrs judge freo ms healey represented that she called me on multiple occasions and then when the court put her to proof she changed it to e mail that was a false statement made to the court that would certainly support the sanctions or would bolster the sanctions that are being awarded in was up that night i was getting everything i could and so there was an enormous ways of judicial time and energy on a false representation in this case and i would submit that it wasn't the only one made to the court loop couldn't even confer on basic matters like pretrial motions and eliminate the defendants had to file a motion because we couldn't get anywhere luke couldn't even when it came to trial loops summit at three thousand six hundred  forty eight individual exhibits if we were to take a minute per exhibit that would be sixty hours of trial time we had an eighty hour trial we tried to meet and confer with with counsel she she refuse just gilliam saw this case was going it cannot be tried there was not a disclosure of the trade secrets there was nothing to be done with this case there was a refusal to follow the rules has refused to allow the witnesses to answer questions  depositions i was at a deposition where she took the position that i could not as counsel for i q s ask questions of the deponent that was clearly improper when she wasn't objecting the question she was coaching witnesses is clear on the record on the o s c and the terminating sanctions and she testified on behalf of witnesses loop continues to torture the record she states of page forty of her third brief on cross appeal that the order on the motion from for sanctions regarding the trade secrets had nothing to do with rule thirty seven when indeed the motion the i q s filed and the other party's joint specifically said this is gone too far we have to have the sanction or just special and that's mentioned at the order of page three lucas warren many many times of sanctions but instead of taking those to heart she decided to attack judge room she decided to say that there was animosity towards her and then she turned on the judge's clerk that was beyond the pale loops established contact supports a finding under katsa granite said scaling did not reach that issue loops bad face contact the misleading of the court the vexatious multiplication of the preceding support and awarded fees under section one nine hundred twenty seven i believe the record is clear i don't have a case that says that you can  question if you had a choice to affirm across the board or to vacate the order and send it back to reconsider not just fees but also terminating sanctions would you send it back or would you take deferments but your honor i think i'd have to look at it as a practical matter this case has driven my clients into the ground they have no funds to continue forward so we were hoping to recoup funds if we had to retry this case i think citizen to dismiss this case must be affirmed by this court there's even at the cost to me that was of no not not at the cost of us not getting fees because as practical matter i don't know what the afford it they can't afford to go on we don't know if we'd ever collect fees the practical thing is yes a firm a firm a firm this conduct was a great aegis the rule thirty seven motion focuses on justice and it would be just to affirm this this case cannot go on any further thank you thank you your  you know i have very limited time so i'll try to respond to the point i believe are more important first i met mr murderess here for the first time today he was not coun summary judgment motions that had been pending in front of the court for eight months i could not find a single case where parties fully brief summary judgment motions and  italian defendants and i'm away via say concurrently those motions were fully briefed they address the merits of every single claim if there was no mary to our claim it would have been very easy for the court to simply rule on those his brief at one point they say thirty six thousand documents that they were all one in the same and all i asked the court to do is to please review the record in particular are nine seven five three  portion of a brief filed by the italian the finance and the several pages below ninety seven five six nine seven seven three nine seven seven four where they tell in the finance repeat legally represented to the court they are entities legally distinct from our way you say we separate offices boards and books and records in every single one of the responses to the discovery requests which i hope the court begun the biggest that they were just producing what was in their possession custody and control and in the default judgment motion we specifically address key evidence that we requested that was never produced by am away your prejudice by the magistrate procedures and they think under hollingsworth the perry the supreme court doesn't give a party a right to please ask the court to apply the procedures those procedures were very prejudicial  and they dress that in detail the supreme court has held that if we want to preserve privilege we have to risk contempt and that was that was the basis for our mandamus when the court the night the mandamus we immediately produced at the time the court issued the terminating sanctions or that we had produced those documents and they submit to your honor that those however many documents were part of the privilege log cannot be a basis to dismiss all claims against submitted we are now in recess thank you