particular appeal is the district courts award of ruhleben sanctions against mr get a and they get a law group for arguing that the district court's reliance on the conway report in awarding nearly seventeen d one million dollars in lost mining royalties violated defendant's right to due process this award should be reversed in vacated because the due process argument was objective only reasonable under the circumstances and it doesn't meet the exceedingly high threshold for imposing ruhleben sanctions or today's argument i'm going to discuss the standard for imposing rule haven't sanctions clarify the nature of the due process argument that was asserted by defendants below and i'll explain why that argument was objective only reasonable under of the circumstances then conclude by explaining why this court cannot affirm the rule of an sanctions war on alternative grounds that were specifically rejected by the district court under rule ele the legally indefensible in the kohl's department store case that was recently decided by this court after a briefing in this appeal is complete the court looked at a similar sanctions provision and said that sanctions should only be awarded for truly agree just misconduct the due process argument here does not satisfy these exacting standards now in talking about the reasonableness of the due process argument i think it's important to clarify what defendants did and did not argue to the district court below because that argument's been mischaracterized in the plainest brief the defendants didn't argue that the mere admission of the conway report violated their right to due process what the defendants argued is that they were denied due process when the district court based a seventeen million dollars award for lost mining royalties on the conway report despite the fact the district court had previously called that report an adequate and despite the fact that the meaningful damages hearing that the district court promise to promise the defendants gave them no opportunity to either cross examine mr conway or present their own expert pro judge i think that's a fair question and let me clarify before mr getty entered this case that before you became counsel of record the decision was made by the defendants and their counsel not to participate in certain discovery they didn't retain their own damages experts and that was a decision that was made before mr getty became involved but my real point is this based on the two district court orders that proceeded this damages hearing what was said about the conway report and what this damages hearing needs to look like they've defendants a reasonable basis for questioning the meaningfulness of the hearing after the district court decided the district court did not simply decide to adopt the con why report the district court took up what the magistrate soon took it up to know from reviewed in his opinion all of the evidence that was submitted at that hearing and then made a determination so i'm not saying they have that i'm not saying again that it was the magi satisfy any standard the what you are arguing your honor i don't disagree that the district gore conducted in of a review what i think happened is that both the magistrate judge and the district judge they based the nearly seventeen million dollar loss mining royalties a war specifically on the conway report there was no other piece of evidence presented that came up with that number that number  decision is that they were basing their number the seventeen million dollars and i'm rounding but almost seventeen million dollars number specifically on the conway report if you look at both of those those decisions that was the basis for how the court got to that and i think your daughter's fair to point out the district court and the magistrate did say yes there's there some of other evidence that we believe could support this but at the end of the day d the c who and then you have subsidiary evidence that supports it from other entities that are sufficiently expert to have rendered information you have to not change the dollar figure what's wrong with saying your honor respectfully i don't think that's what happened here with the district court i think what the district court did was it said it looked it looked at the evidence and it says the district court set up the proper measure of loss mining royalties as what's in the conway report and i think that this record even said that you know other evidence about my ability d d and mark ability and other things like that didn't actually matter because the default judgment mooted the need to consider any of that so i think what the both judges below found was the conway report is what controls and that's what should be used as the measure of loss m royalties and i think the reason that it was reasonable to question that the question that reliance on the conway report is based on what the district court had previously said about it but why is that a due process violation i don't understand the argument due process means you have a process you have a hearing me maybe that maybe the court renders a decision that you disagree with i don't know but there was a hearing there was you had your own witnesses you could have taken conway's deposition throughout the litigation and chose not to you could have had your own expert i mean i don't when it was the denial of due process here are the basis for the due process to a subsequent order it was the order denying defendants the right to reopen discovery to retain experts the district court said you know in that case you know maybe the conway report could be inadequate but but earlier firms didn't and the client is bound by those decisions and is assumed to have approved times decisions so to say that you want to come in and have a meaningful opportunity doesn't mane what we might call we're on from a do over you don't get to start at the very beginning when five years went by from the time you saw all that report and said anything about that you are in the position that your previous litigation tactics hands clenched your opportunity is i'm meaning full opportunity within the position that you have placed yourself so explain to me how that's not what you come out here i think that's a fair question and let me respond to it two ways the st was when the district court ordered a meaningful hearing on damages these players that take discovery by mr gates predecessor had already been employed it was a situation where you know the discovery period already was the failure to depose mr conway and to retain experts that are might be considered adequate but always if you get a meaningful chance to respond and what it said in that order was early strongly indicate it was the meaningful opportunity to respond is going to come in the form of a cross examination of mr conway  possibility of inappropriate behavior because it manes that you cannot do what you should do in discovery you can white five years and then you can come back and in order to have a meaningful answer you get to reopen and start over again and i can't imagine that this court would want to encourage that type of the hanks you're not taking the staying or the problems that resulted prevail below i think your honor brings up a good odyssey reason why maybe it should not have but our point is simply based on what the district or itself it's about needing to have a reasonable and meaningful hearing to respond  damages and needing to be able to cross examine mr conway the fact that the conway report then becomes the measure of damages when that opportunity never comes to pass that didn't give defendants in this situation a least a reasonable basis for questioning whether the medical hearing that they had asked for had been provided i think your time's up let me ask judge batchelder if she has any further questions i do i've got as you might imagine several points that i want to cover but i want to go out of order a little bit because judge french there's a question that you've raised several times it's obviously on your mind  and i want to reinforce what i think you've already seen the damages that were awarded were not based just on the report it's true we took the position in the litigation nothing alters my previous conclusion that the report stablish is the appropriate measure damages he did say that but he also weighed the fact that  kentucky fuel itself had said this is contrary to everything that they were arguing at trial and contrary to what mr justice and mr ball attempted to testified to they had gone on record property and that it was a quote women win proposition they were all going to make money for this and you know what else this goes directly to your question judge french about the the they gave the newly to persuade it to these leases from them and then newly recited those same figures in this press release so that was also part of what the court looked at him in saying yes we're not looking at just the report the other evidence confirms the accuracy of the report as as well as the motion that mr sanders client filed where he said we don't even need to hear to have a damages hearing because we've got a new contract matter and the royalties will be enough to pay the plaintiffs simples so we don't even need to have a hearing up but with  that collimator recommit let me turn to the due process argument first of all i think it's remarkable that on this appeal pellets don't address what the district court did they tried to address what the district court didn't address but think about what they did and the argument they say that they were called the denial of due process and contrary to what mr sanders said one of the specific arguments that they make in saying that they were denied due process they said that i the magistrate judges consideration of the evidence at the damages hearing of the court's adoption of this deprive the defendant of a meaningful opportunity to be heard the court's reliance upon the independent arbitrators report of and then they go on to say that reliance in appropriately deprive the defendants of their property rights without due process of law similarly contrary to what i understood mr sanders say on the next page of the of the rule fifty nine motion that would be page six they say obviously there was no way to cure the inability to cross examine mr conway and his report should not have been put into evidence for that reason alone so they're saying the inability to cross examine him was part and parcel of the due process that not i'm sorry but the word river list was designed for that type of argument is just inappropriate when they say they look at the big picture when they say they were not had a meaningful opportunity to be heard what happened they had a three day trial that trial was governed by the federal rules of civil procedures federal rules of evidence it was preceded by a status conference with a everybody had input based on that input  a rather standard pretrial order they had an opportunity and good designated exhibits they objected to exhibit so you had an opportunity and did engage in preparing motion practice they call witnesses to cross examine i could keep going through that litany they've got every piece of procedural due process that little bits get every day in courts all over this country and they say in spite of all of this that  we we didn't have a meaningful opportunity to be heard that is why judge fenty even who live in ruhleben sanctions or for that type of frivolous argument and there's no abus discretion in him doing so now let me consider the two specific arguments that they made that i just read from from there when i was reading from their rule fifty nine motion they say well  he should not even have considered mr conway's report shouldn't even is considered if so what would they have done and your honor asked questions in the or over earlier argument of the not well did they ever object any time up to the they had an opportunity to object to exhibits they did not object they never filed an objection to the exhibits so one of the pretrial order it came in as a matter of course but in case that was an oversight they had a chance again because on day one of the trial of the magistrate judge painstakingly with through all of the exhibits and and called out each exhibit and asked if it was objected to or not mean isn't that why i mean i hear you that it's i mean it's a it's a it's correct but i'm wondering if that's kind of like when you lose a motion in limine a before trial and and the trial judge indicates that there's no admissible right i mean there was no way even if they had said now i object to the conway report being on this exhibit witness that and either judge was would have said oh yeah now you're i i realize you're right we're going to strike it i  come into evidence that's not uncommon at all now i don't think necessarily that was covered here but if they wanted to object to the report that was an objection that they could make they could have objected to a lack of foundation you know mr conway was deceased but that again i've got various reasons why i think that wouldn't have been a good objection but my point is they did absolutely nothing to object to it introduction as an exhibit so whether or not they should have done that whether or not they could have done something else if they're going to claim that their rights guaranteed under the united states constitution were deprived then it was i was urged it's incumbent upon them to have rejected to the reports that they're saying should have should never have been considered similarly for the they claim this st appear if peers throughout their reading brief but it st appears on page nine of their opening brief they claim that the district court overlooked its prior order where it had expressed reservations about just relying on the report without further evidence and they they argue in their brief that the rule fifty nine dollars motion was justif cost the court somehow had overlooked its proper order really responses to that number one it's factually incorrect the court did not overlook its prior order when he wrote his opinion he clearly hadn't forgotten or using their words overlooked his prior order second his opinion judge french as you've noted does address the other evidence  limitations and discussing the prior reservations that he had of the notion that judge ben taban hope some help from god about his earlier order and the reservations he expressed is just factually incorrect so that was their lead argument on their appellate briefs and the appeal should be denied for that reason alone seka this argument that he somehow overlooked his prior repent ian was not it was organised it was not ever raised in the trial court that argument that he somehow overlooked his prior ruling was not the rule fifty nine dollars motion it was also not in risk in their response to the eleven motion and finally and judge now that the in one of your questions i think goes to this the argument is sort of a non sequitur let let's suppose the district judge has not addressed every argument that they're now making so what that's not a constitutional violation we lawyers all the time raise you know every argument that we think  client might prevail a lot and if we make ten arguments a court might rule three of them of i don't expect everything that every lawyer says in the course of these two arguments to necessarily be reflected in your honour's opinions but the fact that i might say something today that you don't address in your opinion doesn't constitute a denial of due process so that argument is just a non sequitur in short nothing that they've said shows that district court used its discretion in awarding the rule of an sanctions and we asked the award be affirmed for that reason unless the court has any questions that that's batchelor do you have any further questions i do not that the st is in the portion of that opinion discussing sanctions and awarding sanctions there is no mention of its prior orders calling into doubt the adequacy of the contrary report or the prior order saying the defendant should have the right to cross examine mr conway the nd point is that's not the only thing that's being argued in this appeal the argument is not only did the district court fail to consider its prior orders it's that had it done so it would have reached a different conclusion because those orders made the due process argument objectively reasonable i also wanted to respond to the point about the fact that there was a three day hearing with witnesses and briefing there's absolutely no  dispute on that but the point that we're making on this appeal is that the hearing and the result that followed from it didn't comply with what the district court had previously said about what a meaningful damages hearing should look like and what a mean ul opportunity to respond to the conway report would look like st the district court said the report is inadequate and to be sure the district court did seem to walk away from that to some degree and  said the the report might be adequate but only if defendants get a meaningful opportunity to respond at the damages hearing and it very strongly indicated that that meaningful opportunity would come in the form of cross examining mr conway and i'm going to read from this is record three hundred and sixty eight dollars the district court said defendants anticipated raising the deficiencies in plainest proof their cross examination of the experts themselves this is precisely what defendants will be permitted to do in an evidentiary hearing and obviously at the time the district court said that it didn't really didn't know that mr conway passed away but he was rejecting your request to reopen discovery right he was saying look you guys dropped the ball but and you're not i'm not going to let you reopen discovery you'll get your chance at the hearing but i mean if you didn't bother to take a video dep of the guys you could play it try out why i don't understand why you get bailed out or why the due process cla the marker of what the due process clause requires i mean the due process clause requires what it requires and i'm still puzzled by how what happened over those three days wasn't due process and again your honor i'd i would respond that the question isn't whether the due process argument was a winner the question is was it objective really reasonable to raise questions about the meaningfulness of the hearing that they received what it didn't end up complying with what the district court previously said a meaningful hearing should look like as i say that up i'm out of time at max include plates for all the reasons we discussed today i would ask that the the court reverse and vacate the sanctions award against