which i will talk about today the trial court eroni asli instructed the jury adding an extra element to wanks case and the trial court improperly denied whang the opportunity to amend the scheduling order to put forward the evidence that prove she was not in material breach of the agreement now the supreme court of washington has held that the general rule is that a defendant in a breach of contract action who claims that the let's bring each is justified by the plaintiff material breach must prove this claim as an affirmative defense the burden of proof is on the defendant now in i am d b s brief it fail to even address these washington supreme court cases which we think is tantamount to a concession that this is indeed the general rule well this is this really comes down to a question of whether the obligations here by both parties whether they're really independent what's i mean give me your best argument as to why they're not concurrent what the obligations here work in current because in this case well first of all i am to be conceded that they were not conditions precedent i am to be tried to say that they were concurrent but the treatise that i am to be cited explains that concurrent conditions is a form of mutual condition precedent so in this case what i am to be is trying to claim is that if a user of the site submit false information then suddenly i am to be is justified in completely abandoning its privacy policy that seems to be the law that's what will never seems to say but there's nothing well what the supreme court cases say is that there has to be express evidence in the contract of this interpretation that the contracted not create a condition precedent i think in this fight the notion that the truth representation did not create a condition precedent so that they are concurrent know so that they are that there is no condition precedent all they're not con current they're just simply ongoing obligations now there's a difference between simply breaching an ongoing obligation and breaching an obligation that the contract has designated as a condition precedent let me give the court an example i think in this contract a duty to pay ninety nine ninety five and if she did not do that you would not be obligated to provide her with a year's worth of the i am to be pro subscription but in this case and similarly if miss wanted not pay her ninety nine ninety five well then i am to be would be justified and not providing her with the service but of course in this case she did pay her ninety nine ninety five it's undisputed so that's the kind of mutual exchange of performances that the contract would create as a condition precedent but here the notion that it's an ongoing representation that the information you're providing is true is somehow a condition precedent to i m d b having to respect your privacy is nowhere indicated in the contract and particular this is a law this is where it's and it's indicated in the contract that she was supposed to be truthful well it's indicated that she was supposed to be truthful but what's not indicated is that i am to be has no obligations unless she has truthful required in the contract it seems to me and i think maybe we're just reading washed a lot differently but if a contract requires performance by both parties the party claiming nonperformance of the other must establish as a matter of fact the parties own performance seems like here the contract required the parties both to perform mis seems like their client bore and continue obligation to tell the truth and i am p d bore continue obligation to keep this wanks information private so i'm trying to figure out regardless of i am these actions here it seems it seems like your client had had to perform her side of the park marking before she couldn't force the program the contract that seems consistent with the way i read wilner so seems also to be consistent with the classic understand you know contracts burden of proof so what how under that reading is your client  going to be successful here well your honor wilner only applies as an assist the to a specific subset of contracts will not represents the exception to the general rule and washington not the general rule it is true that i mean pattern contract instructions for the state we're on are in the pattern jury instruction even though we'll never say that it's underneath a header that says conditions precedent so that the pattern jury instruction is making clear that wil is just talking about a type of conditions precedent can i move you to another topic which is let's suppose that we find that they're not concurrent what's the evidence that i am d b actually breached the agreement and it seems to me that mr kerr used the subscriber name for the search and that was something that wasn't private and as a result of that  found what he found so i don't i really don't see where the breach it well this was a hotly disputed factual issue your honor first of all as far as all this the evidence that that you put forward i know that i know that there was argument but what was the evidence that you put forth the he didn't do that well ms wang testified that she knew that she did not provide her legal name to be a subscriber name and there was a very compelling narrative and reason for that that she also testif in front of the jury which is that she had spent her whole life keeping her legal name private and operating under her stage name and she testified that when she first created her i am to be account she created it under her state's name and i believe that was speedo and then she testified that she knew she wouldn't have given her legal name for any other reason than not to process the credit card payment she also provided the subscription for seat which shows that it was using the legal name that she provided with her credit card name it appears above the billing address and appears above the credit card name so that was the evidence that she put forward all the chi rela testified is well there's two separate fields but he actually was unable to testify affirmatively that she had provided her legal name and the subscriber information field because he wasn't there either he just testified i went into the billing database it has payment information it has subscriber information and that's where i got the name and so what's wrong with it that's that's what i don't understand well there's nothing there's nothing wrong with that but there was testimony supporting ms wanks if she had enough evidence from which the jury could have found her which i am to be breached the agreement and that's what that's what she needs and there was also the undisputed testimony that he took her legal name and provided it to a third party website that action of sharing her data with a third party website is also a breach of the agreement it was undisputed that he took the legal name and use it to search on private eye dot com now i am  got up and argued well searching isn't really sharing but of course the evidence was before the jury that i am d b s own subscriber agreement i am to be says when you search for something on our website you're sharing that information with us we're tracking the information that you're searching because we want to know what you're interested in so there was there was really undisputed evidence that he had breached the contract in the sense that he had shared the information to marty website if the search allows a long sleep on name with third party private eye doc com i said i am to be made a legal argument that that's not sharing because using a search box isn't sharing but i'm saying that the jury saw evidence that even frying t v using the search box is with private eye dot com when it enters her name into the search box but that entering the name in the search box does not reveal to the public her real age well no but i'm but one of the conditions of the contract is that i am to be not share her personal information with others but that that comes in a portion of the contract which really deals if you read it in context with selling personal information to advertisers or to stores it doesn't deal with i think  clear that it covers way more than just selling to advertisers includes giving the information up in response to government investigations and includes sharing it for purposes of fraud protection it includes giving it to e mail vendor so that they can work with the information so it was really up to the jury decide whether what chi relative was just taking her legal name and your your position is that the meaning of a written contract is a factual determination for the jury no your honor well under washington law they make a distinction the interpretation of the contract legal effect is a matter of law for the court but the interpretation of the specific factual meaning of individual words in the contract if they are disputed by the parties is a factual issue for the jury could you cite me the washington is on your own i'd be happy to follow up with a letter because i have a case in mind i just i don't remember the name o court's refusal to do so was a logical implausible and without support from inferences that may be drawn from the facts in the record the undisputed evidence here was a prior counsel john doe's or in the months during which he was supposed to be helping  case was suffering from brain surgery heart surgery a surgical kidney removal he was being treated for daily dialysis numerous infections in the face of these ailments there's simply no other way to view this record than that he was unable to represent ms wang and rather than face defending the depositions of the very witnesses that wang told him would be relevant he simply forfeited them and stipulated not to have i and the b to take their depositions and perhaps most objective lea wrong he refused to disclose any experts even though among her claims was a claim for lost future earnings in what we all know is a very risky career there's simply no possible way to read him failing to disclose the damages expert as anything other than abandonment of a client let me ask you about the damages for a second to my right in reading the record that the most money that your client made in a year from acting was around five thousand bucks well it's true your honor that like a lot of up and coming out just as she wasn't making a lot of money at the time but she was entitled and indeed she really needed to put on an expert to try to create an economic model of the chances that her career would take off in the future there are a lot of actors who until very late in their careers really make a pittance and then suddenly things take off and doesn't fall into the strategic decision of a council on a case that you may have evaluated as a low dollar case to just put on evidence that could get him a verdict but but but not spend so much money that it was going to turn into a losing proposition no matter what the jury came back well the record in this case though was really to the opposite was that truck counsel actually harbored very high estimations of the amount of damages that she had lost probably any can an economic expert would have provided a more realistic view to be honest but he didn't even identify one so she was never able to try to make her best case to the jury unless of course for the question i'd like to save my last minute for about  instructional instructional error the court's questions of already alluded to a lot of the key points here about washington law and i would just emphasize that the washington pattern instructions are given persuasive effect by washington courts and they are consistent with the language of what the washington supreme court has used in cases like welner and the plaintiff has not shown that they were an incorrect statement of washington law but mr miller why wouldn't telling the truth be different and independent obligation to protecting privacy those two things seem very different than a mortgage situation where you're transferring title to property where the  the title and paying the money are definitely concur they are concurrent in the sense that telling the truth is really the core obligation of the customer and others that the initial payment of money but after that the customer has no obligation to provide any information at all but if they do there are two separate provisions of the contract that say that that information has to be truthful and that's critical to i m d b is business because there are a lot of places that you can go if you want to find information about you know actors in hollywood there's lots of gossip sites out there i am t v is different it's a compendium of factual information about the entertainment industry and of the customers don't trust its information because it has on it then there's no reason for it to exist so the critical nature of telling the truth in submissions that are going to be put on a m t b is such that it's appropriate to view that as a concurrent obligation  that the customer isn't doing that then there's really there's no deal between them and i m d b and so it really does fit into the pattern the washington courts have recognized and it was just discussed was this disputed below that they were concurrent conditions are not that herb material breach of the contract was an affirmative defense that the defendant had to show and even if you were to even if you conclude that that was correct under washington law contrary to what the the washington supreme court instruction different under different instructions and to believe that the result would probably have been different yet you have to believe three things you'd have to believe that plaintiff have established that i am to be breached its contract you'd have to believe that she had shown causation of some damage and you'd have to believe that the jury was an eck what boys on the question of whether there was a material breach by i m d b because otherwise the allocation of the burden wouldn't have mattered and none of those three things is true and certainly all three of them together are not true and if i could start with the question of whether i am to be reached you know the court's questions already brought up a number of problems with the theory of breach or i think perhaps the clearest path to seeing that there was no breach is that the contract and the price which incorporates the privacy policy says that i am to be can use customer information in responding to customer requests and here we have an explicit request from this one go back to your files and as long interprets that requests are with the benefit of hindsight you know now that we know that she was lying about her age and was dissatisfied you know only because the lie wasn't taken off knowing that you can say well you know of course that wasn't really a request for them to find out the truth but they didn't know that mr khairallah when he responded to that request had no way of knowing that she was trying to engage in a bigger falsehood and being told you know go back to your files my date is in my birth date is incorrect the natural way to interpret that is go back and find out what the real birth date is that that's the way that you would show that the listed birth date is incorrect just to find out that what the real birth date doesn't see that something else so that was and was a perfectly reasonable thing for him to do and it falls right within that provision of the privacy policy  she was not aware of her true date of birth until this lawsuit was filed even though it had been op on i m d b for three years which makes it very hard to believe that it was really having a significant effect on her career she couldn't identify any specific jobs or even opportunities for jobs that she had lost all of her evidence on causation was essentially the claim used to make a certain amount of money and now i'm making less and you know there are a couple of problems with that one is just the hoc fallacy that there's no other evidence of what else was happening in the industry or in her career or you know in the economy at that time but on its own terms it was quite questionable because a lease showed an cross examining the plaint that and finally the question of your materiality of the breach i've already sort of explained why or the this is not just a technical requirement of the contract it's a core obligation of the customer and so a violation about indeed material and would have been found so under any allocation of the bird i'm turning very briefly to the discovery question but before we go to discovery let me just ask you a couple of questions  with respect to the harmlessness which you just discussed and i have a little pause with respect to going the harmlessness route because i think we have  have been different and you can make a judgment based on the evidence of whether it was and you know again even if you think that any of these three elements you individually might have been there they all three information but what what about i am did promise not to post information without her consent seems like that happened here there there is not a i mean of the the date of birth was not information that she had provided that was and there is not a promise not to post  know information it was information pertaining to her well the you know when i am d b you know like the new york times publishes a lot of information pertaining to individuals that you know those individuals might prefer not to have published about them and then they the information that you provide in the section there new information you give us and you know it is long there's also a section about information from other sources but when you read that in context it's  it is not sort of publicly available information about a person like a date of birth position is that information provided by other sources is not information when in the position of i m d b which must first be shown to the client or it's given to third parties that's correct demanded of the explanation for that is that there is you know all of the information read that as information about those actors that comes from a third party but if you know there was the editing of what you show is not totally within the control of the client that's right and so i mean really the more natural way to read information from other sources is you know something that the credit card company tells them as part of processing the transaction you know that would be part of the of the individual's private information it's not you know the sort of in conducting discovery she had you know six months to do what she she did a fair amount of discovery there but you know after the fact decided that she wished she had done more her claim her being relieved of that is to say well it wasn't me it was my lawyer who didn't do what i wish she would have done that runs into the general rule that a client is responsible for the acts or emissions of his or her lawyer there is the exception to that is very very narrow comes in for this court's twenty case and it applies really only in cases of default judgment or its equivalent your failure to prosecute failure to file timely notice of appeal and only in cases of gross negligence essentially amounting to abandonment by counsel and the supreme court explained that in the maples case which is a capital hippias case that the plaintiff relies on when when the counsel has a band and his appeal simply not the case that she was abandoned by counsel and there's really you know short of a rule that you know everyone gets a do over when they're dissatisfied with their counsel's performance you know there's nothing in this before could be put on the site no your honor that's not our position but i think your honor's question really exemplifies why this contract was so confusing because i think by the literal text of the contract that's exactly what it means but of course i emptied this whole website would have to come down if that were the case because most of what i indeed is doing is gathering information public information from third parties and publishing without your consent that's why it was some porton for the jury to have a chance to rule on this case because it's also obvious as obvious that there's some subset of information which is private information and which i knew he was agreeing to protect now maybe up a very obvious example of that is your credit card information maybe another example of it is the kinds of movies that you've been searching about maybe you've been only searching for movies about parents who discover their child is gay or people who discover their spouse is cheating on them this is private information that you don't want to share now with the jury had to do is listen both sides and look at this rather broad contract and figure out was the information at issue here within the scope of what that provision was meant to protect and this one testified that it was she gave her legal name with her credit card information it was information that she had guarded zealously her life upon pain of risking her career prospects and she treated at that way so that's why this was a close case for the jury and i believe as a judge would be a mentions  this court presumes prejudice and the burden would be on i m d b to show that the jury had to come out the same way had been properly instructed but if you look at the big picture here what i am to be did was quite prizing they go into their billing files they take the customer's name associated with the credit card and they run a public record search all of this in response to her begging and pleading with them to take her age off the website now sure i'm to be has good arguments for how you can fit that into the provisions  contract if you look at it just right but i think a lot of jurors would be really upset about this kind of behavior and it's really up to the jurors to decide if this agreement it really does permit that type of activity if a contract required of everybody who signs up for the site can it really be that i am d p is reserving for itself the right to respond to requests by doing the exact opposite of what you're trying to do and taking your private information and using it to we do dispute the legal impact of that and that this a breach of that provision did not justify what i am to be did here the other example i want to provide for your honor is on this case the issue of stage names this is a website that catalogues people in hollywood a lot of these actors who stage names well if i am to be a theory of the contract were correct that would mean that every actor who's registered under their same stage name who's now obviously provided false information time to be occurring time to be they're free to take that actor's credit card information their search information all the data that they've gathered about them and do whatever pleases because they submitted a stage name instead of a real name so again there's nothing in the contract that would indicate to users that that's the right that i'm dubious reserving for itself so it certainly was something that the jury was going to have to decide here if the white lies that she told in this case during the period that the contract was in effect were such that they would justify