too to provide full disclosure of exhibits that were used the trial balance less that the exhibits were identical or produced by the defendants he fell in the store but other than his argument that all those things were in the pretrial memorandum there is nothing in the no analysis at all of what is in the made hand pretrial memorandum it's undisputed i believe that all witnesses were disclosed and identical and all been deposed there was an adequate disclosure deposition of the actor who was disclosed it's undisputed but the problem here is that the trial court dismissed the case basically because i felt that the actions of mr mchugh and i'm not here to defend his actions he didn't comply with the order he didn't properly file a brief excuse me a pretrial memorandum but rule two nineteen see is a rule that exists for when things go wrong like this and the problem so there was no disclosure on our discussion i believe on the night of the witnesses would be or what the exhibit which i hope i answered your question you had me thank you the first problem is the may eleventh two thousand eleven words of rule two nineteen see is expressed in requires that if you're going to impose a sanction on direct there has to be an expressed finding in the order the judge tells specify the reasons and the bases for the sanction so on of there's nothing in the mail of order to that effect at all and there is a statement in the mail of an order that it's for the reasons an analysis of the court expressed and in the court that day only look at the mail out of two thousand and eleven proceedings there is no what was still needed to do in order to let the case go to trial on may sixteenth the order of the motion that was presented was all based upon the orderly administration of justice and the discretion of the  to manage its own docket but what's missing here as required by szymanowski by santiago in virtually every case on the subject it to nineteen are actual findings of actual prejudice and we submit that this record about the contents except for mr mchugh stated that it's exactly the same stuff that's in the defendant's there's no finding by the trout work there's not even a question raised by the trout or asking counsel for the defendants why can't you go to trial on may sixteenth what is it about the late disclosure albeit late now that it's late what is the reason the council never stood up and said i can't go to trial on monday because because i'm surprised by the witnesses now because they were all complaint there was never a cause of action for an accounting related to the time period after may so i believe that the claim that was being made was there was a claim for two point five million up to may two thousand and six and then there was  actually for accounting afterwards to determine the damages in addition to the damages that were claimed were timely submitted on may two there was the demonstrative exhibit that was submitted on a timely basis that's an argument they may i don't think for the sake of argument if backplane were untimely or not allowed are not disclosed or not indicated by the pleadings there would be no problem with the court considering the sanction which is it actually expressed in to nineteen of striking the defendant's really never argued and they don't argue want to feel now that there would have been impossible for them to go to trial on monday the other issue here is that i think the case last very clear that actual prejudice must be found and that lesser sanctions must be considered and rule two nineteen itself expresses four five and i would submit a forecast discretion to fashion any particular lesser sanction and dismissal that is appropriate under the circumstances what isn't addressed anywhere by the trial court was it's now may lead why can't we go to trial on may sixteenth what you need how so in order to proceed to trial on monday there the dismissal was reversed because the trial court did not find actual prejudice they didn't delve into the specific situation of the defendants and soon enough he had access to all the same information they had known about the particular destruction for a long time and the trial court in that case just because he understood there was the grave decision not related to this case by because of another case he felt compelled to dismiss the case but he didn't make a finding of actual prejudice in the they would now be able to obtain records or information all that wasn't enough just the suggestion they were required to demonstrate that some of that had actually occur so what we have here in this case are a lot of claims about the pork or prejudice like this is i'm sorry i'm september fifteenth when we argue the motion of a hate the trial court indicated that i did consider the lesser sanctions and her discussion on that was that she considered striking the claims  but i keep getting back to the same place i'm going to strike claims the case is going to get this next but the problem is the trial court never set well why would you strike the claim why would you strike a witness there was no cost to do so because there was no actual prejudice she she the trial court could not have found that there was surprising that he's witnessed every one of them was on and it's less she the trucker did not make any finding about actual prejudice as a result of the exhibits being biased on the ten instead of the six these were the documents that were produced and the defendant said two hundred fifty four exhibits what could the trial or have done as an alternative to dismissing the the night i'm going to take one of your trial days away the trial court could have considered whether any witness was a surprise the trial court could have required the plaintiff to state specifically the order of witnesses who would be called on a specific day which is something trial lawyers frequently do anyway the trial court could have assessed costs the trial court could have stayed the proceeding and told the plaintiff that you cannot have any damages after this state or that you cannot have any  prejudgment interest after this day there was a panic only of things that the trial court could have done short of dismissing the case with prejudice which is the ultimate and most severe sanction and the failing year is in the whole bunch of cases and invariably in every one of them one of the arguments we make is that the plaintiffs themselves they're the parties the appellant's are the parties they're blameless there is no finding of any consummation isness there is never even a motion to compel order compelling anything prior to this there are blameless and what we see is in every one of the cases in which the apple appleby's relied on the link versus wild ass case sander harris versus harris hayden's big three cane gate sander through denham go forth every case there is a pattern of disrespect for court orders there are prior orders that have not been complied with for a long period of time the cases we cite demonstrate that there is a situation this is not the first time that way or unbeknownst to the parties is shown up and not have there be trauma randomized file or even the first case in which a lawyer as shown up or fail show up for a pretrial conference and there is case law on this subject i mean we cited to the federal case where the plaintiff's lawyer failed to appear three different times for a pretrial conference that didn't support dismissal a sanction with september hearings before their jets no back in regards to it in the first instance in may we were confronted without knowing anything and having a trial set the court indicating it could not set as short continuance in regards to her back in or regard to what it is that the court would do it in december after the final settlement pretrial the core issue to detail border guards to what it is that she wanted in respect to preparing the case for a fair trial he's right and  to introduce composite correspondence between the parties for a whole hears that is two days before the trial that's what i was told they were going to do in terms of exhibit now u she specifically said states when she wanted things done he shows off at the pretrial conference and files a motion to compel which she found was bad faith because the here yes the reson more here it was her terminations that he was totally unwilling to go to trial at any way shape or form in regard to it and had engaged in gamesmanship basically not to do the things that he was supposed to do he regards to it that's the first thing that she found in respect to it and it was based on her feeling that indeed there was bad faith in regards to what it is that the plaintiffs have been doing here and outnumber her using that word  then gamesmanship in regards to trying to make it look like it was not that's why she did what she did and again when the court looks at this with the prep work to reverse the circuit court is basically telling anyone who just doesn't do what they're supposed to do and has no reason for why they didn't do it this is this is what makes this case different from the cases that he had her first the circuit courts in regards to abuse of discretion in each and every one of those cases there was a good reason or at least they are arguably a good reason why the disobedience occur whether it be because counsel was afflicted with a disease physical disease mental disease whether it was miscommunication between counseling instead it is in the transcript of a motion for sanctions in regards to the may eleventh hearing in respect to earth and i believe it is in volume that transcript for the court's purposes is in the supplemental record on appeal volume one and those would be at c one fifty five to two forty four in regards to it where mr mchugh does indicate that he would seek additional time so that there's supposed a lack of compliance in regards to the fact of the matter is that that too is complete hogwash in regards to it because secondly it was never raised on the motion for sanctions in the first place no one ever said well don't do anything to my client because they didn't know this was a johnny come lately argument on the motion for reconsideration motion to vacate is considered a motion for reconsideration by illinois of course yes and then just very quickly in terms of the sank yeah no requirements which the court specifically mentioned that she had reviewed in respect to what she did find that this convict whereas complete this obedience liberal without any reason express much less a good reason for this and then as a consequence in looking at the rest of the she did find prejudice and there west prejudice we would have ground at the trial not knowing anything about that so what is the plaintiff's intended to actually present as evidence as opposed there as well as the pretrial order regards to this not one isolated incident this is the first sanctions and i'm sure the first sanction that was administered in regards to whether it is that is correct or up there but there is no indication in the case  szymanowski they both involve different types of violations and different types of on the their ball rule to one thousand cases and in both of those decisions the matters were remanded because there was a lack of actual prejudice found and a lack of a record that showed and demonstrated demonstrated the actual prejudice and that's really what we have here too the court actually in this case did consider because it must it's one of the things that must consider it is evidence of confirmations disregard in the case and the court specifically found that the plaintiff's past performance was not necessarily consummation is and was not necessarily the lead direct violation of the  argument that the witnesses listed weren't on their list there's no argument made that they weren't all the pows there is no argument made that they did not know of these exhibits if there were certain exhibits that were inappropriate