accord those involved in the administration of justice whether judges arbitrators or mediators not only have to be impartial they must appear to be impartial to the public can be perceived that way if our system of justice is to be fair and just my name is dean dickey and together with brian williams we represent seats and court but the interesting opportunity to protect the integrity of judicial proceedings and to avoid ratification of a principle of law announced by the district court which is contrary to the plain language of disclosure rules and is contrary to the factual findings after a full evidence or a hearing made by the texas court of appeals regarding the relationship sixty three v test your honor and i don't disagree with that but i think that i'd like to with the court's permission i would spend the time this morning in the limited time talking about sixty six which provides express relationship official no conduct in our opinion no question that judge faulkner should have done so we think also that the law firm should as well but for purposes of the limited time this morning we don't need to go to the sixty three analysis i'd like to spend the time on the sixty six analysis because clearly the relationship as a whole i guess i appreciate that you get to make some decisions here but not all of them and so i guess i would like to try i don't want to hold you up dealing with evidence with respect to what took place at the mediation where our client and its warriors at the time provided a whole series of confidential information regarding the case the affirmative defenses of obviousness at a time when a mediation was conducted shortly before the trial commence and that based on that information shortly thereafter and that trial arguments that had never been made use sharing confidential information in the court went on to say centrally not nor put it well so now you're changing your position and you're saying that we should rest on the basis  sharing of confidential information you know your honor what i'm saying is that confidential information was provided and that that put no really i think distorts the position that was in which was information was provided but we can't make an accusation here as a matter of fact under rule levon because we don't have any discovery we don't have the ability to go behind but what was alleged is that confidential information was provided and if you think about it with respect to the mediator there is no opportunity and we were not given the opportunity for a hearing unlike in the texas case where the texas judge held days of hearings and took evidence on the relationship all we know is what happened and what evidence came at a time when discovery was close trial was set and things that had never been argued before and defects that had don't know whether the judge would have done it the answer to your question judge o'malley is that that was not made by trial counsel at the time as well mediation is certainly confidential any information shared with the mediator is confidential but to me it would be protected from an inquiry as to whether need or is there herself improperly shared information i'm not sure that that is so your honor that the mediator could actually be deposed about his conversations  without more without some concrete effort we all sign mediation confidentiality agreements nothing that's discussed can go outside of the mediation you cannot ask questions about what the mediators conference was with the other side which is why the disclosure rules are so important here and what and i can't answer judge approach to your question beyond that because there is no evidence in the sixty three restamp clearly requires the movement to have to be able to show and demonstrate some impact on their ability to have a full and fair trial and we do not were not given that opportunity nor did we was there time that's why i think that this case however can turn on s although that pace specifically involves the conduct of the judges and what i want to i think that the reason that cries out here is the evidentiary finding by the texas court there is no such evidence tree finding by the district mediators mandate disclosure in fact that record it but i'm trying to get past that so let's assume that you're right on that and we agree that the mediator should have disposed and that there's enough facts to show that the relationship should have been  d even if that's the case the because the supreme court's decision turned on the judge's violation of a statute it's arguably there's are actually a distinction there from that to this case what is it i mean you say that perhaps they learned about their best defense of their obviousness defense from the media or through you right that's  that that is something that to an objective observer could conceivably be what the conclusion would be are you saying that even even though you conceive of the possibility of that defense that you weren't prepared to respond to it when you got to trial i don't know whether that anybody was truly prepared to respond to that issue but the whole process if you had if you look at the timeline of what took place there wasn't one mediation session there were a number of mediation sessions and this mediator was brought into the case by the court and throughout the trial the mediator was involved by the court so throughout the course of the proceedings that took place there were discussions interactions between the mediator counsel and the pardons all we know is that after a point in time we with and i and i will because i'm not hearing the answer if your case rests on this sharing of information or less sharing of information what we have is the court saying that you're claiming you didn't accuse them of that the court notes that nothing in the record suggests that the information was shared and you acknowledged to judge that mally that you didn't pose the job so now i is correct that you're resting your case on this sharing alleged sharing of information you know that is not correct the army arresting our case on the fact that there was information that should have been disclosed by the mediator at the time the court appointed the mediator and obtained confidential information and that process at that point it is our position that the proceedings became tainted without the disclosure the whole point of the disclosure is to give a party the opportunity to say no we don't want you and so much to look at for  said it can't be your position you're just saying the non disclosure automatically meet the test of sixty six you must rely the line on something that was going on in this case and the consequence is right well i think that based upon what we have alleged in the information that we shared we believe that the school the relationship that was not as close was sufficiently broad and partial that that had an impact on the proceedings going for so tell you exactly what was discussed because that would require me to have some evidence about it so i have to look at the purpose of the scotia or the purpose of the disclosure rules and the role of the mediator and why the mediator because we don't have a record as to what was disclosed and not is very difficult without some evidence surely records to be able to expand beyond those circumstances it would be very difficult to make an allegation so you're saying you don't have to prove prejudice as i do not have to prove that in fact it was shared what i have to prove and i believe the record is on challenge because that has already been established by the texas court which the district judge ignores in his supposed standards at least the first factor in sixty six of the risk of injustice i mean is that to be based on attorney that your honor just raise had to be me i didn't try the case but i know ultimately what happens here is claims are held and to supported by prior art what's in just about saying claims that are  cipated by prior art are invalid in and of itself nothing but the fact of the matter is if you get the zapping result through a judicial process that's painted then very much like a fourth amendment issue of the fruit of the poisonous tree you have evidence you should have gotten that may have resulted in a conviction however the process and the appearance allegation that is completely unsupported by any facts before the court and when you listen to learned counsel i think you understand that that is true here i think i heard him say we can't make an accusation consistent with rule eleven th disclose confidential information but what do do they even need to do that i mean what if in fact the mediator should have disclosed this information why isn't that the end of the answer so let me let me record the question is no i think is no question the mediator had nothing they should have disclosed but assuming that that were true under sixty six which learned counsel wants to focus on they most certainly do have to disclose something perception of impropriety with no effect in the world is not the test under rule sixty six leave aside the fact that this is a new argument it's not present in the real it's an incorrect argument for the fifth circuit in the bowling case says that sixty six requires that quote prove that quote the inherent problem with the justice system or faith and trust in the justice and liberty your honor suggested that it might under certain circumstances be possible to infer harm from the justice system and then they walked through three factors  consider in deciding whether or not that's true the actual risk of injustice in this particular case the risk of injustice in other cases and the perception of the justice system now i suggest that under the facts of this case there is no  risk to any of those factors it is i think manifestly clear that there was no injustice in this case what happened was precisely that the plaintiffs got a full and fair opportunity to present their case and they lost and they lost before the jury they lost before the district court and they lost before this court and what they're asking for which is to reopen a judgment on a patent finally invalidated i think it would be in justice certainly not the prevention of injustice but it is also worth no to go back to the original factual point that there was no wrongdoing by judge walker here judge faltered the dischord specifically found as a matter of fact the judge poster did not violate a disclosure obligation the only lawyer who had a relationship with judge will never read johnson was never involved in this case at all which is what if you argue that this shouldn't be that the relationship of johnson in which the su both for the state court decisions is very substantial and covers the same period of time and then also you've got the timeframe between between the reman and the second appeal where this case is filed and these mediation starts when he knows that his relationship with johnson and fishes is under scrutiny and and he's not disclosing it so there are there are actually a lot of facts that would indicate that disclosure was necessary there are facts your honor that would suggest that if you were in a case involving greg johnson he should they never argued that relief from judgment is required simply because of the undisclosed personal relationship between judge bolton or and greg johnson their argument instead is to try to tie the fish attorneys who were involved in the case somehow to judge that argument clearly fails as a matter of fact but doesn't the state before say that this goes to the firm as a whole because it was a broad relationship that included him being being hired regularly by the the fish lawyers by doing a presentation to the fish law firm i mean this was a fake court specifically referred to the firm as a whole not just mr john your honor i don't believe that to be correct either the ultimate conclusion in the in the case which was decided in the court of appeals just a month or two ago was was that this did not require you pening for liability although that was on grounds unrelated to this disclosure issue but the the court  court was never asked to and did never conclude that the relationship with brett johnson should be imputed to the rest of the fish law firm but your your argument and you say this in your brief your defense is but fish did not defend just faulconer in any meaningful way well of course i mean the centrally in the texas action mission richardson was defending an arbitration award for its client in which the impartiality of judge foster was the basis upon which the it would rest with the issue in dispute so i guess no one can quibble that the correct people fishing richardson was not the judge's defense attorney but certainly shimer who did in fact argue that case on appeal was at no not at the time of the mediation involved in this case until he was brought into the case six months later so there is no sort of connection between the interview geisha and during the trial was there there was and he was not involved in that mediation either and he was counsel of record if he was counsel of record at the time that's correct but he did not appear in the mediation in any event the allegations that the plaintiffs make are related as far as i can tell to the first mediation since they involve the  liberty makes clear that sixty six allegations must be based on facts that are not the same as the basis for the sixty three allegations now the plaintiffs repeatedly try to merge these things together but deliver it is quite clear that the at the basis for understand it at vision richardson did anything wrong that argument has to stand or fall under sixty three under sixty b c it's reasoned that the right so the question is did judge faulconer do something wrong reputation stood to benefit he knew for sure that fish would be arguing that he was going there are going to remain from the state court he had already been he'd been deposed right about that same period of time so i mean what do you mean it should have put you to state that that meant that mr impute a requirement to the law for him but i guess i want to suggest again that that is even if one were to try to do that that would have to happen under sixty three not under sixty six i don't understand it kill him you can accuse that conflict or firm simply on the basis of the residence and relationship what they argue and what they stood up here to argue was that there was possible disclosure of confidential information there is no evidence whatsoever to support that include the judge walton or violated some ethical obligation there is no harm there can be no harm in this case the well that's what i was going to ask you about in terms of there's some risk of injustice that unearths to the entire system thats not necessarily just about whether or not this case would come up differently do you agree with that and if so what is the result your honor i disagree that there is any risk to the justice system i disagree that judge fulton or violated any disclosure of legation but even were this court to conclude otherwise i don't think there is a risk to the justice system that comes from a conclusion that a failure to disclose a relationship with an individual at a firm because it would have been imputed to the entire law firm might have colored the view of the mediation because the mediation itself has nothing to do with the ultimate outcome of this well here's my problem with the risk to the justice system it is having both mediated cases i may have for other judges and and and wanting to rely on mediators myself it's really really important that the parties actively and aggressively participate in mediation and are honest and open and in some ways it's more personal because we judges are back here behind the bench for ruling in open court mediators having one on one conversations with these parties and mediation can continue to be success if you can't trust the mediators and so if a mediator doesn't disclose all of these personal relations needs you know maybe they would still decided to go with this mediator but not  g those personal relationships changes the whole dynamic and it could be use of mediation at risk for those district judges that would like to try to strong arm parties to participate in it i understand that your honor although in this case i don't see how it could possibly have affected the outcome what seats told the district court in the sixteenth emotion blow is that they would not have agreed to mediate had they known the true state of affairs let's assume that that's true and that's in the record a nine fifty two  press it's not my intention to dismiss the importance of mediation your honor but i think the key to understand is that the outcome could not have been the same could not have been changed they got precisely what the justice system broader concept then that there would be no perception that this was relevant or germane to the reste resells i'm therefore there's no risk of injustice the question is whether they would have a whether they lost the opportunity to fully and fairly present their case your honor and what i'm suggesting is they had exactly that opportunity they got to go to trial they got to have all of the evidence and that's correct or i think the six must be something different more or less but something  of proof than sixty three they have to show that the initial judgment was wrong and in fact you national judgment was exactly correct it was confirmed by this court and that leads me to a final point which is even if i was wrong about even if the mediator behave badly and even if we thought that that might have affected their ability to fully and fairly present the case they had ample opportunity at multiple occasions to raise this issue before the district court to ask the district court to hold pending the issue to ask this court to hol pending the issue to seek review in the supreme court the get none of those things they made a deliberate tactical decision to split this argument off from the appeal on invalidity and having lost that appeal on invalidity having not asked for a stay and having not asked the supreme court for review this patent is invalid and it is invalid not only with respect to my clients it's invalid in a proceeding with respect to other companies such as air tran who were not in any relationship were not an appropriate so yes your honor and i think that's right so if if in fact we were to lose on each of the steps along the way and we were to set aside the judgment as to the fish represented defendants what i'm suggesting is that there is were participated in the mediation but of course they are as they were required to do a participated separate individual companies who are competitors cannot cool mediation defense so they air tran was represented by separate counsel in the media in the trial and indeed in this court on appeal and the air tran is not even here precisely because they have never been involved with fish and rejects the mediator who was not fish and wouldn't the me failure to follow his ethical obligations like about the judgment asked everybody i don't see how it could wipe out the judgment as to air tran because i because i'm not sure that sort of how air tran could have done anything differently even granting this court to suggest that we can throw out judgments because a different party had a relationship that was undisclosed with the mediator would be would be manifestly unfair to air tran quite a because you make a segment it seems to me under appreciated that argument now that this is kind of the wrong term to describe that self is that yes it is the argument you're on that's right that that if that if a patent is invalid as to air tran and there is no reason to overturn that what went on was improper in order to protect the integrity of the judicial system that might perhaps be an appropriate remedy but it is not what they're asking for what they want is another shot at a patent that has been proven invalid when they made a deliberate strategic effort argument counsel made that argument was not made to the district court wasn't part of the court's opinion and it was raised for the first time in this appeal i think it is not timely and it is wasted in any event the rule says we have to file within a reasonable time that's the only condition and with respect to sixty one two and three it has to be filed a motion under groceries to be must be filed within one year which there is no such time limit other than reasonable and i would submit that we were timely in our filing second how many times could we anticipate and this is in the context of the problem with the case in the side and armed with this decision there would be no disclosure i would submit to this court that that presents a serious problem for the judicial process which needs to appear impartial and to the extent  are not allowed to have this disclosure which is clearly mandated by the context of the rule and the facts as they exist that places the judicial process at rest with respect to public perception thank you very much