but in fact her deposition was taken at home was it not it's true you're on then where is the travel time because the deposition was set for new york city they travel to new york city to prepare for it with us we got  call that the day before saying he'd like to do it by phone which we accommodated him to take anything from upstate new york previously the i think i tried to clarify the record isn't it isn't it true that she actually did appear in new york but but they offered to do it by phone date she appeared in new york and when it was all set there on their way to new york we got a phone call saying from the other from the pla i'm sorry from the offended saying that they want to do it by phone and we agreed with the save of the trip from chicago but they were already underway for the writing and we were preparing them in new york so they attended i found to the issue of sanctions you're not disputing that it trial court judge like judge rakoff would have the inherent authority to sanction someone if he felt that there was improper let me me let i don't read the trial court sanctions to be premised on whether he was an expert or not in terms of whether he could have served as an expert what i read his sanctions are to be can't give those i'm not an expert you don't well pointing out that you thought she was given expert questions and she said it was her question to them saying are you asking me that i thought well if you go through the whole the position you'll find that in fact she did answer expert question what about the fact that that you charged for five hours when her deposition was less than an hour well that's we've stated them here that they use their normal process of billing for companies like national geographic because they do a lot that's the way they do it on a half day a whole day basis so they build at the same rates on the same basis that they  had for other expert matters with example they did it under same basis for our standard of review we review all of his factual findings for clear air and then we review his ultimate conclusion for an abus discretion it's not right issue and he made very specific factual findings such that that those dollar figures were not really appropriate approximate mation of the their hourly rate isn't that right was no you want to be he refused to follow the local laws as i set out in my brief case last setting how you set the fee and then he went and compared it with the lawyers free was there for a certain that the scotts fees as experts for testimony in this case were reasonably founded there's a letter from national geographic for sanctions nowhere that the motion it's for a group thirty seven section nowhere did it say the court was going to invest it said eric power we were not prepared for that the only thing we had with those with three pieces of paper but with two of them sat out what he had been paid dues paid forty five thousand for today one job for national geographic that said the record but those that's all we had that we were not rights of your client well we were going back and put together a some evidence to show what he had done over the years what he had been paid one that had been relevant to a role thirty seven the sanctions not look at that issue why did you rule twenty six requires that in any expert's report you identify the compensation that the party is paying to the expert for the expert testimony did the expert proport identify compensation that would seem paid for the expert testimony that was being elicited well that's if you needed an expert report here hearing what about the fact that that ultimately the trial judge also concluded that even if you were it's permissible to shift fees when no actual out of pocket expenses were incurred that this particular in this particular instance mr got was not able to serve as an expert and in fact testified that he did that he couldn't actually provide opinions about the very expert issues that were critical for this of those instances i think anyone debating the fact that that is that he has expertise he says he's the inventor he's obviously one of more than ordinary skill in the art but legally there are ways that you present an expert testimony and then that person if you are holding them out as your expert witness has to be prepared to respond to the questions on which you're holding him out for his expertise well you are there is no requirement reasonable fees these reasonable feeds album deposition i'm not aware of anything in the record that reflects the fact that they've been described to you i personally made a phone call to reschedule the deposition i can't say with utter certainty that it was not the day before but i believe it was believe it was it was prior to the day before the day before i also believe that judge ray cuts primary basis for the sanctions order that i think that th which in this case the right so the issue really is whether the issue whether the things were legitimate rather than whether their motivation was to try to counterbalance a bill submitted to them that is true but i believe it is part of fine to be paid into the court yes he did and that is a punitive sanction correct yes and isn't it true under second circuit law that that that's not appropriate in the absence of due process protections yes that is true and i think the experts we've got two prongs to this one is did he really act as on what you think the trial judge concluded he didn't but assuming that he had cooked even in those cases if there's an expertise and they want to call on him can an individual party who does not incur any out of pocket expenses recoup expenses under twenty first of all i would say that it's not that he should not be decided in this case  two as the basis for a witness who disclosed so if you want disclosed in the rule twenty six two you cannot then charge for your later deposition he was not originally discussed expert but what about the fact that that later at least the court accepted the supplemental expert's report does that somehow endorse him as an expert at does that cure the non disclosure i don't believe anything relating to what he was going to be paid or what his compensation would be none whatsoever it would have been a real twenty six b to see that there was no reference in the report to compensation as the rules require no there was  as he said he was not capable of comparing his claims to a device that pretty much closed the book ok so that brings us to the summary judgment issue because mr aris cut knowledge that he had no literal infringement case and the court correctly determined that he was unable to present the sufficient facts to prove infringement of the dr and certainly the party dispute provide the corresponding structure for the mounting ring in one state many says it's the thing that holds the lens which on page fifty three of my brief i color coded yellow in another statement he says it was the ring color coded like blue jones in this case who is knowledgeable about the subject that he would be able to apply for a reasonable attorney fees on the rule twenty six and i submit to you your honor the vista each card is in that same position that he acceptable was improper because of several three different points which are pointed out to my degree that the he  i mean what about the point that was raised a few moments ago about the apparent absence in the summary judgment declaration has that kind of limitation by limitation is that what you mean yes i do and you want to grab that we've been using at the time if there's something else you want to say on the summary judgment well