you know i have to tell you something  that for the purposes of the motion to dismiss and sad even after they they are liable as a matter of law without any facts needing to be found in the us no prejudice resulting from the delay there still remains four questions relating to damages these were who went on disability and when they went on disability how long they were on disability and when they were terminated however there are because these were raised for the first time by the trial courts who in the program and they said one hundred and thirty seven that were terminated within this program thus we know who went on this i'm sorry class members means people on disability who were then terminated so we know who went on disability we know there are one hundred thirty seven people in the likelihood is that digital knows that because they counted the names of the people we know when they went on disability which was before the terminations there were no damages before the terminations terminations caused them to stop occurring present benefits and we know when they were terminated because that's when the pension plan stopped accruing additional benefits for long term disability plan how the long term disability plan was an insurance plan insured by that life even if we assume that digital didn't have the records that life certainly would have and again maybe i hurt i'm sorry digitals thirty six expert mr malki i asked him if there was anything other than his declaration that caused the case more difficult to pursue any clearly said there was nothing and there's nothing in his declaration about the plans records about math like not having the records again when i raised i'm sorry digital did not raise the issue of there being in this court in their answering brief when i raised it in my opening brief digital did not suggest they would have any trouble identifying these facts these pieces of information the second point i'd like the compensation album when she reaches normal retirement age she will receive a pension from the plan and this case is about the size of that function correctly thank you  they would have had to testify as to whether they read the summary client's scription whether they took action in dependence on it whether they knew that the terms of the plan were different what constitutes reliance what  me get the other go the distance thank you involved in decisions whether to lay people off almost all those people have separated from the company he testified that at most two or three people if he was lucky who had personal knowledge of the reasons digital didn't didn't would still be around ran that and they're involved in laying people off i don't know as i stand here your honor where the human resources person at digital in one nine hundred ninety one was still with the company in two thousand or we say we don't have records anymore that says who it was and then maybe it turns out that just minutes passed away maybe it turns out there was not nobody knows where he is anymore the point is your honor though that we're not the ones that the legal framework here is not defendants have to prove prejudice even if you know the senate yeah in every case defendants are generally going to be the ones with the best knowledge of whether they were prejudiced but the was a strategic lay deliberate with a purpose to hoping that the law would change the files or other factors even with that in mind and prejudice is one of them so you heard this as one of them and also the idea of a lesser sanction  off his or any other prejudice counselor gone through him so that all the information that's actually necessary that the court at least focused on is in the available hundred thirty seven people the records are available in the record one of the issues about this particular plaintiff is did she release her findings and that issue goes across all of the people who are prospectively in the class because the document that go to the record it's all been litigated so where is the what is as a practical matter i mean there's a lot of rhetoric floating around in the breeze about eleven years this case has been pending but if you go back and look and watch what has so it's not as if she has to get back at the speech you coming in to replace judge mclachlan she would have had any judge coming and would have had to start from ground zero on that basis so the case management aspect  decision to await clarification of the law that weighs very heavily here no doubt about it but if at the end of the day it has virtually no practical effect on digital other than having the use of its money or whatever for eighteen months or two years instead of having to pay it out to the plato or the plight of class i sort of like to get a comfortable feel that there's some sense of you can't defend the claim the claim one based on all of that's already in the record in that she was the name pointed in the digital if she had represented by the final offer and she was clearly call the council and say i don't see anything happening here let's go on to say and you know it when it  the court has the system that you're i was talking about i don't know about what examples of prejudiced and there's not no evidence that we know who is on disability at the time we don't know whether they exhausted their administrative remedies the plaintiff here played that she did and i believe we've been to that she did but there's no evidence as to the other members good inflation i agree that it's my burden to show there is no risk of prejudice you and i do it by showing that under both counts it's a question of law i