concerns denial of duty of a jury trial and denial of a day in court was excessive and was particularly excessive when combined with a monetary sanction of approximately sixty five thousand dollars and subsequently twenty  you know having previously going to trial judge obviously you you try to impose a sanction that will you know you have certain things you have to go through that that will also be appropriate that you try that there were no motions to compel whatsoever prior to this when there was a full discovery day that lasted for over a year there were over several hundred requests for admissions which dr leon answered there were no motions to compel of any of those there is of course a seven hour limit on depositions here dr leon agreed to a virtually twenty one hour deposition over three days there was a wide a range and kind of plea of evidence every conceivable issue we also have that you have the problem as it was an accidental there is that obviously and imposing sanctions to might say someone accidentally deleted one file that would be different th purposely deleting many that history around and so you've got them because apparently he he admitted that he did that they knew what he was doing it wasn't that when you accidently sometimes you hit a key and then you spend all day trying to recover that document that you've been working on and so it's not that situation and it's also he was allowed they entrusted him with keeping the computer while things were going on but saying don't take anything off it and then wh the it was not extraordinary enough circumstances to warrant the final dismissal in the atlantic your decision the court also refused to monetary sanctions of about sixty five thousand dollars that were requested to about twenty thousand dollars it is very close only allowable under the most of the extreme of circumstances the nicer given district courts within the ninth circuit have struggled to come up with what a definition of extreme circumstances in is exercising their discretion and the conduct there have to be grounds for anticipation of the future of the use and perhaps most importantly the card his conduct needs to threaten and to entirely eclipse the possibility of a fair trial thousands of documents exchanged that there was no possibility of a fair trial under these circumstances that conclusion cannot be reached under this record good also the point out of the court that the judge back then conceded at the end if this you are one fifty one at the motion on sanctions that she had not taken into consideration any of the motions for judgment or evidence motions which were before her at the time she decided the motions for sanctions is one contest that prior to this hearing on the motions for sanctions the district court had had very little opportunity to become involved in this scheduling but that was it so the entire array of facts which the court has before you in the first fifteen or twenty pages of our brief with regard to the television and the facts of porting that retaliation the district court by her own admission simply understand but through her own admission she simply had not looked at what all of the issues were in this case what the evidence was and there was a significant amount of evidence in the various motions for summary judgment which she expressed with chose not to read sanctions were applied and i think she also did not adequately consider the public's interest favoring disposition of their cases on the various and certainly i don't think that she adequately considered the availability of less stressed exceptions the availability of what less drastic sanctions to deal with this specific type of conduct and not the i think you've kind of gone back and forth a little bit between the setting the sixty five thousand dollar amount on your clients are going to say is sixty five thousand dollars there does not seem to be discussion of that in the record in my correct about your correctly pointed out that he had been unemployed for a year and we pointed that out at the sanctions argument but district court hey i can't you know i haven't worked for a year and there was some consideration to have a person's ability to pay and it was raised whether it was considered or not is not clear on the street when you say it was raised or what kind of aside from the client's ability to pay i think when you look at the underlying documentation with regard to the sixty five thousand dollars you will find that a great number of those services but you can't really extricate which were devoted to typical discovery things like taking dr leon's deposition as well as other discovery tasks and the district court did not require a showing and simply had no showing on the record before and that all of those sixty five thousand dollars would have voted to in their find or give paid back to the other side the amount of money that he had spent and then trying to get the case dismissed it was allegedly on behalf of services devoted to the deleted those files he deleted more than two thousand of those files that when he deleted the files he did not take any care to identify what it was he was deleting he deleted them indiscriminate directory like directory and what's more not only did he delete the files event using his own computer expertise developed his own program the purpose of creating the program and running it on his laptop was to make sure that idea x and the court and the jury we're never going to find out what it was that he believes t mustang and this is what are we to know i d s in order to it's also important that sort of review how we came to know this this wasn't a situation where there was a confession by dr leon during the discovery proceedings that i did concerned that you'll do something to them to compromise the integrity of the information on their i mean this is this is the attitude this plaintiff had toward the litigation  appropriate and it clearly wasn't i think the district judge has a wide discretion to determine what the appropriate sanction but why is this only when it's appropriate here well i don't think it's the only one but i think the standard of the answer is no that could well be up here arguing that that was the only possible thing a district judge could do i don't think i could reasonably say that but i do know that the standard of review here is an abuse of discretion and really the question here place over a very long period of time and the fact that it was egregious the fact that it was willful the fact that the court found that dr william was acting in bad faith put aside prejudice put act appropriately and in accordance with the court's authority well i if i were if i were in your position i think i would make the argument i mean how can you try cases when you don't know what you're trying i mean it is far as that goes but then also when you know as as participants in the system we expect a certain level of contact regarding that behavior of people and if we can down everyone destroying the evidence so to disadvantage the other side in a litigation it goes to the very heart of the integrity of the system i don't need a law i don't have my count colleagues team argument on that particular point i don't but i would like you to turn to that what the court considered for the sixty five thousand dollars did not seeing it seem to be fairly cursory well your art we may be reasonable but it has to you have to consider other things rather than just that it's reasonable ye center well and the point of my initial discussion was the basis of the sixty five thousand was submitted the court's order can't be read as anything other than an attempt to punish dr lee and that was the point of my earlier discussion i agree with you the other party for the cost of having to investigate your misconduct and so i think with respect to the financial resources the courts of any note of the doctor lend me one hundred sixty thousand dollars a year a employed for some months aside from that there was no and i think this is you know there's a there's a big there's good reason to wonder what were his ounces and you know was also testimony that in the middle of his employment with i mean there's also evidence in the record that that a private party is already trying to see in private litigation and lost or won for that matter that the agency should then go out and litigate the same thing and there's two cases we cited i think  ninth circuit his'n chao they talked about is there a divergence of interest between the government agency and the private individual and in the donnelly case the court talked about whether or not there was when the purely private interest pre domina dealt with any government agency action by the n r v those cases a restroom card of clients to the government agencies proceedings and yes we know the n l r b has a very important function that they serve the public interest and we know the department of evidence but there's really very is not a hearing on the substance of his claim i don't think that's ever been determined now the department of labor might have an ability to go forward and maybe under the rules of the department of labor under the act consider his claim and make some disposition of it different from what might have been made by the district court had the district court heard all the evidence and i guess what i'm saying is that he maybe he's entitled to that hearing or to proceed before the department of labor and if the department of labor is going to throw him out because he destroyed some evidence maybe that's the decision really make the agencies that interest predominate over the individuals because ultimately all you're doing is giving the individual the make cloverleaf whether you approve it or not and i think what this is you know the basis of the settlement issue is when you look at the starbase lasley act there's a definite concern by congress when you when you review the statutes and the department of labor in the regulations for an represented whistleblowers they're being treated fairly and that's why they also have the settlement provisions but it's are aimed at one thing and that is to give the employee who have been retaliated against the money that so we believe that pretty ruling by judge fact was incorrect and we  did not take adequately into consideration in giving us i guess the more that i'm thinking about it though if i'm thinking about the fact and who can say they can't pay me it's not something they can say that's something that's in your ballpark if someone declaration along with a multi page attachment with regard to services rendered was files this for the district court on the afternoon of the oral argument we walked into that courtroom we had no idea what they were asking for sixty five thousand dollars for how they misguided but a deeply held desire to not produce some material which was of questionable under those circumstances but he didn't just delete the pornographic material that he had on that on his work computer that wasn't the only thing he deleted they can tell from that he deleted work files he deleted too much but his goal in doing all of that and it was all worked for twenty one hundred ninety nine pornographic and one was work guess gives you the exact right throughout that there's also two that doesn't make it great because you probably can't get fired i'm pretty sure you can get fired for having pornographic material on your computer right so there is nothing in the record about i d s ever having fired anybody for that matter and there discovery abuse made it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available that was not the case here it is not the case in the fourth case is that i gave you before the still be appropriate but giving the gust now was not with regard to the all been sacked if you reverse on the sanctions of course you don't need to need to just need to deal with the cross appeal i would remind the court as the district court clearly held exercise of discretion under the old which act is clearly discretionary and only under the most extraordinary circumstances twice because i'm curious about the fact that in the labor department page one seventy six i'm sorry if the the supplemental exercise records filed by dr lee on it page fifty six and the district court said and i quote arguments this court's use of the extraordinary all writs power before that moment is premature