criterion in terms of whether or not dismissal under inherent powers is appropriate is whether or not the misconduct penalize threaten to interfere with the rightful decision of the underlying case the judgment or dismissal has involved the situation in this circuit where a party obtained evidence from the other party which outside the discovery process every single case where this court has found due process to be satisfied lot i'm deeply troubled by this case it seems to me a lot of these other cases what they're dealing with is discovery someone holds back information that they should have revealed manufacturer of evidence they created a fake letter from a doctor and this course that is reprehensible of that conduct is due process does not permit dismissal and that because that has nothing to do whether or not the underlying claims over repeated three days of collateral your honor and posting it was over a several day period as well if the collateral matter whether or not mr jackson got the jury also and again microsoft had all of these materials they were deprived of anything how he got the cd and how much he went this is nothing about whether or not microsoft discriminated against mr jackson on the basis of race due process requires that connection i'm certainly not arguing with the fact that mr jackson should have been sanctioned we concede that the question is when is the ultimate sanction up proper and due process limits if only to those economic conduct that allowed that would you choose with a rifle where the misconduct did not relate to the evidence on the merits of the claims for the defense that mr jackson wanted to go to trial wanted to give false testimony instructive that even in those cases where they've been deliberate acquisition of privilege material by one party the normal remedy is exclusion of the evidence not suppression and i cited the united states versus hinz case which i think is far more egre the government paid the defense counsel's investigator as a confidential informant and the defense counsel and the defense investigator turned over to the government confidential trainee client privilege that look this court refused to been prejudiced and the only prejudice it could be would be from privileged communications and even then the norm of the normal remedy would be exclusion of any evidence that mr jackson obtained tried to protect himself our friend mr new from what happened doesn't mean microsoft didn't discriminate him on the basis of race there's no connection between the two of them that he's in this good company sometimes discriminating against people who might even have a problem telling the truth that doesn't mean he didn't get discriminated against and that's the problem here is the courts certainly have the ability to take action but it couldn't take action violating due process i'd like to reserve the rest of my time for a johnson matter reflecting a series of privilege to tourney client communications this judge has made a finding that mr jackson had a czerny work product documents about his claims and that he had other individual plaintiffs in the case from his same facility stop the case should disclose in an order or in oral statements in the court room what the content was certainly that would have then constituted a very serious waiver of clear that mr jackson has communications about our strategy in his case that does deprive us of a rightful decision on the merits because he's been able to factor that he and his lawyers been able to factor that into their got position strategy had it for ten months before his deposition and he's shown information that he won't identify for us to others so others are tainted we don't know who they are because he won't tell us all of them notwithstanding being asked to he able to work into his strategy our privileged communications he has precluded us from obtaining a rightful decision on the merits because after eighteen months this case is pending as the judge notes in her order we are it's making a hostile impossible for us to know who's going to come into the courtroom biased what other materials might exist microsoft has tens of thousands of employees it's not reasonable for us to go and consider every current and former employee and try to ferret out what the sources in the street jackson's evidence might be at his obligations truthfully and thoroughly respond to discovery and he didn't do that now he has a clear morning after two days of repeatedly lying in his deposition we file a motion to dismiss he responds to the court by filing a declaration that is littered with provable rot with statements that provably became known and seen to be false by the court so he's now doing more than simply inflicting improper conduct in the discovery process he's now trying to avoid the identities of people that provided documents in the material that he shredded off the bit torrent shredded but he does say that he got the cd from mr new and that turned out to be false to do so now he's lying in the face of the court he also says he hasn't talked to mr new since this deposition but what we found out at the next evidentiary trial is that he lied to the court about that too this is mr news a material witness mr jackson is concealing key conversation between this individual and he explains in court in december that he did it through this elaborate scheme so there be no record on his phone bills where they go through their mother's intermediaries now after that mr jackson is work product being factored strategy this case isn't simply about witnesses not being identified and in fact being hidden evidence being shredded this case is about an individual who has made it clear defiantly that he will do publicized employment discrimination class actions in the history of employment litigation and sixty minutes across the globe it's all over the internet in heber's of all different languages that the end result is this court is saying all of this egregiousness conduct and you still get your game in court that is wrong and no case in this circuit or anywhere else has ever so held i'd like to address in my remaining moments a few additional points first of all so seen there was an incident involving whether or not a trial would be held on a particular game this that is not a case of eighteen months of absolute mockery of the discovery process there is no evidence that in that case that the defendant was prevented from getting any information to which it was entitled in discovery and certainly its attorney client privilege an attorney work products were not violated moreover false a trial based upon truthful testimony the test is not whether people are lying and discovery the question is whether the reason the employer articulated pre case was an honest reason there is nothing in the hicks cases that suggest that anyone has the ability to continue on in litigation by coming into court and her perpetrating false is in a court room finally and he reply brief mr jackson makes the argument that there was nothing that seemed to be different between october thirty one when the judge said she was going to impose sanctions less than dismissal and december twelfth well that's simply not the case a lot was different very different and let's look at some of those things first of all i have a choker thirty one t court was not aware that mr jackson in fact had paid a thousand dollars to obtain my chris asked privilege attorney client communications work product and all sorts of other proprietary and confidential personnel documents i chose for thirty one mr jackson and that's the district judge was not aware that mr jackson had lived in a courtroom on october thirty one when the judge held the second hearing in december mr jackson testify as to several things that show that his testimony on october thirty one had been false including the fact that he had had conversation with mr new between the deposition and i think over thirty one that he had not she also learned that this is true jackson in fact had access to those very files after the first day of his deposition a container attorney tomorrow you're not entitled to see that he went home that night according to both experts and he opened those files that is grievous he knew exactly what he was doing the night of july twenty sixth after he had been admonished and it wasn't little the just report specifically made a finding that he had access quote unquote vast amounts of information moreover the court didn't know on october thirty one that mr jackson would do what he did which is invoke the system then about his involvement in the commission of a crime he is paying a thousand dollars for the hard drive and when asked and given a chance to finally in court again to tell us in the clearest possible terms my question was something to the effect of mr jackson would you please tell us in the clearest possible me under what the thousand dollars chapter has to do with the theft of mary ellen microsoft hands so severely behind its back the court properly found prejudice and in consistent with ninth circuit precedent which we've cited in our brief the judge certainly had dismissal as one of the options available to her thank you very much all together she never separated out her finding of prejudice the of prejudice from documents that he would have had a right to versus the privileged one and again the question is d