please the court judge wilson judge pryor judge hutton my name is karen coleman am long and i'm here representing the appellant in this case which is an appeal from the imposition of sanctions in a four hundred twenty two thousand dollars sanction under nine hundred twenty seven and also under the court's inherent powers and you point to some that you say are clearly erroneous findings of fact in i guess my question my first question is let's say that you're right that there are some erroneous findings of fact completely like the court to look at the united states supreme court case of a us bank versus village of lake bridge and it talks about the process that a court has to go through  analyzing factual findings and whether those factual findings do indeed support the conclusions of law that are made and it distinguishes in two kinds of facts historical facts which are the who what when where how and why which are factual questions and then there are mixed questions of law in fact which determine whether those facts actually support the conclusion of law that is drawn from them now the can the rules the structure that we have for sanctions pretty well defined those rules are set out and there's really no equivocation we we agree with them the app allee's agree with those rules these the court has a stablish that within the eleventh circuit in this particular case the historical facts of who what when hit where and how are almost largely disputed but supported and not clearly erroneous the one historical fact that is not supported in is clearly erroneous is the why and in the first paragraph of the trial judge's order he explains and illustrates where and how he has made that white determination in from there i'll tell you why it was erroneous he states debra eldridge visited the law firm a for advice after she had been fired from her job at ed care management at first the m long firm did not believe that she had a very strong case but after eldridge explained that she had records that might reveal illegal activities by ed care the am long firm agreed to pursue her case for a probable payout commencing on that no without a single demand ever having been made without a single threat to use any document that ed care claims was improperly taken by ms eldridge who without any concrete evidence of any act or any word by any warrior of the am long firm the trial court implicitly recognized plot and that is where i mean i understand what you're saying about the why i thought there was another y in there and this was the one that is motivating me to give you a sense of where i'm coming from is the request to return all company files that's them that's the real head scratcher for me in what seems to i think is the key source of the sanctions and the key source of their mom judge sutton those files were returned to soon as they were ordered to be returned all company files all company files in all company files that the m long firm knew about were returned as soon as they were ordered to be returned by judge let's take a look at the facts of the four that were about the copies the copies were returned to everything was returned not on the first request no it wasn't on the first request because the first request said green we want you to get bring with us the files that were taken upon your terminations the facts are undisputed that on the day that miss eldridge was terminated she was escorted out of the building with no files in her possession whatsoever and that request for files that she took upon her terminations was repeated several times in the future including in the pleadings that were filed in this lawsuit what about after judge order as i understand the facts and correct me if i'm wrong your sklansky signed a declaration on pain of perjury that she had turned over all company property in her possession she did and i don't understand why you would let your client sign that without checking to see what was in the firm's possession and as i understand it and particularly because at this point there was a possibility of sanctions as i understand it there was still information in the firm's possession that had not been turned over that is absolutely true judge prior bit when judge snow held her hearing she said turn over the documents but you may keep copies you may keep copies and that's all the court i'm sorry that's all the am long from ever did they turned over every piece of paper including things that were not company property including check books including personal personal e mails from years and years ago those were turned over in you know three bins to jump drives in a cd every single piece of document that every single piece of property that we knew and this is undisputed there is no no question about this is a matter of fact mister mr pollock states mr pollock states during the hearing there and this is on page one twenty one of the transcript of the hearing we understand that everything michelle ridge was able to find that that time did get dumped through the am long firm in november of two thousand and thirteen aside from some straight documents that turned up later not the sort of thing it was based on the issue is that they said on the laptop in the c e o s contents of a laptop in the c e o s journal handwritten journal for a year and a half and that's true but those documents were never requested in discovery number two they were never reply of and and number three they were never used for any purpose in this litigation nor were there any documents in those documents that were relevant to the litigation that the c e o s cdrom for example and there is a printout of it there were over four thousand files in there and those four thousand files come from the year two thousand and seven in before way prior to statute of limitations there were two cases here one was a fs l a case which goes back two years or three years from a time it was filed so the the outside limit for that case was two thousand and nine and the other one was a an age in a gender discrimination case that was filed in two thousand and thirteen i think so these old old documents had absolutely no relevance whatsoever to the case were never used were frankly just put on our server and forgotten about they were they were brought in as documents they were scanned in but there is no evidence anywhere that any document was ever used for any improper purpose in this litigation but nonetheless yes the district court  conducted an evidentiary hearing and heard all this testimony and made a credibility of our way sion she did and those are some of the some of the findings that we have challenge because she makes comments about mr ram long for example saying that he had no credibility he used blue smoke and mirrors but she never identified a single lie that he supposedly told never a den a fight any misrepresentation that he made in goes on to find several paragraphs factual findings that she relies upon as part of her order and doesn't distinguish them in any way shape or form to say that i don't believe the she's really she relies on them she does the same thing with this daily she says  she said i forgot a lot which is true she says that she makes comments about her credibility also but then she goes on once again to make a number of different finding testimony that that mistakenly gave now the most perhaps the most important legal principle with regard to those those credibility findings is that even though when credibility is the issue those findings or are entitled to great deference they may be contradicted by documents or by objective evidence and this case there were written contract said nothing about a key tom action which is the  supposedly d m long for him was engaged in and the the story is in just basically implausible they are relying on discredited test of baloney the fact she was evasive to reach a contrary conclusion which both both he from the supreme court in neck and bow from the third circuit say you can't do she used the discredited testimony to draw a contrary conclusion they please the court litigation is not easy lawyers face challenging circumstances lawyers face temptation for a lot of serials adversarial system the work lawyers have to abide by certain fundamental rules one of those rules that we learn this early in life is what belongs to others should be given others in this case from the very outset this alger is possessed a cd with the entire hard drive belonging to the c e o of e t care management there was a simple theft demand letter asking first it was a letter asking for company property back like the hanging files or whatever else was referred to but then there's a civil theft demand letter that specifically read requested the return of all company property what their response was is telling because it was the first piece of obfuscation mr daly of the m long firm writes we don't know what you mean by company files will return the original documents and then has her client affirm that you return the original documents whatever that meant what she didn't say was i should let you know because it's only fair this property belongs to you is that on the quay drive at if in this case and you know they argue that you know sanctions are always a last resort for the courts because it discourages remedial litigation which is what they were considering here remedial litigation and that sanctions cause more harm than good and you could look at the attorneys conduct in this case and make a conclusion that it amounts more to negligence than the recklessness or bad faith and so you know lawyers think there are a few questions there i'd like to answer one is they have the right to try to present this is a negligence case they lost that their credibility determinations judge a taas or is it really is heard a full day of testimony including half of that at we look at a situation like this and overrule a finding of bad faith given the extremity of actually keeping an entire hard drive we're not talking about making the difficult call on one or two documents or even a small category they were in possession illegal possession of an of adversaries full company information it was the it was the my documents folder contained everything  before she went there or there there may even be a dispute whether she stole it or found herself with it i'm not sure that that's a material difference because what's important is if a client comes to me in possession of my adversaries property i don't have the luxury as a lawyer to pick and choose and use it the way i want to me they when they reached in and used or charts they reach didn't use documents when they wanted to which is another reason why their excuses didn't hold water in front of the the judges that heard the case at the trial level including one who sat and listened to the testimony at length this hour was aboard claims begin with the employee bring in files through orders office you know i think some do and i think there are protections for whistleblowers who are really whistleblowers but when someone comes with with and the letter it's a july seventeenth two thousand and twelve letter when miss eldridge says to the  here's a cd with the c e o s hard drive to send the c e o s my documents folder goes on to say and i have audios of of the of operational meetings there there might have been an opportunity for a lawyer to say it to protect whistleblowers rights but that's not what happened here and that doesn't give any lawyer the right to lie or to or to confuse the system or mislead judges lengthy period of time remember what happens even a year and a half into this when judge snow orders that every piece of company property be returned because there had been efforts to seek it all along whether it's a depositions request and where are you getting that document you have to give us all of these documents throughout the litigation there were various efforts to get the company property when judge snow orders it returned it this is almost as interesting or maybe as interesting is the  of the word original at the beginning of this but there's a motion filed by the m one firm to get a copy of what they had to produce on a rush basis this is towards the end of the sets of issues and i think judge pryor asked the question about you know you still had this this copy back at the firm and the m one firm defends itself by saying well we managed to get judge no to say we can keep a copy of things but then what do they do they take the position that they don't have one they actually file a motion to get access to get a copy of what they said was so voluminous that they had to collect it on it had collected so quickly th radios that's the problem here it's what was the law that they didn't have copies the suggestion they didn't have copies when they when they did what they were doing was distancing the m one firm saying this was all a problem with our client but it wasn't and we know that from the from the beginning you know there is even a statement made by mr daly at some point trying to deny that she ever access these documents except this is the rare case where we got insight into the attorney client communications because the client waived attorney cli privilege here so we actually got to see not only time records showing that they did review the box of materials despite denials of it at first but that they as well are receiving communications saying i have all this property it wasn't just an accidental here's a cd that somehow lands itself back with the file room and they upload it these are direct communications from the client to the lawyer discussing these it legally with held materials even if they were attained by accident which i don't think any court had to limit itself to the inference that someone accidently gets a c e o s hard drive i think it's a fair inference that when someone knowingly possesses the c e o s hard drive she was not even the assistant to the c e o a material is all this information the underlying lawsuit i mean that well for keep track of all one part of it is that from the earliest early on we had a self defense for having stolen company property now we didn't know it was the c e o s entire hard drive but there are there are all sorts of risks that are accompanied by a company's full set of financial information that's what mrs eldridge writes to the m one firm in july of two thousand and twelve it's this c e o as my documents and as financial information and much more it has already i have audiotapes of all the operational meetings now if this was a fishing expedition to two a key tam action backwards in time and see what happened it's nothing we were able to develop coming off of a particular laptop at a particular time i'm not even sure that by the time we were litigating this it had come from the same laptop that the c e o is still using so  forensic wise i'm not i'm not sure we certainly did not have evidence that she had taken everything into it was somewhat to our surprise and contrary to what we're being told throughout the case when we received three boxes two thumb drives and a disk in response to november seventy thousand hits in order of claim pretty quickly we did knowing that there was some collection we saw things popping up in depositions we never thought it would be three boxes to thumb drives in a disk including the o s entire hard drive and that's that's what if i'm a lawyer in my client comes to me and says look what i've got i've got the c e o s entire hard drive let's go on a fishing expedition i like to think that i have responsibilities and i'm hoping that as i as final decisions come from this court that it that lawyers are steered in the right direction because not only here was the information not returned but the stories that were told the uses of words like original documents to hide  retaining these filing motions along the way to say give me access so we can copy these because we as the firm we know it's all coming from miss eldridge when it was actually at the firm the entire time and somehow i guess we're being faulted because it the hearing below is confidentiality to mediation so now there's no hearing at which a threat is made there's no deposition at which a threat is made but i think it's fair inference for the court to draw from the radio did that with this information out there that would pop up at depositions and that certainly was in findings of how we were figuring out they had documents that we didn't have had not produced in the litigation i think we get we it's a fair inference that the plan they set in place and this is what mr eldridge testified to miss eldridge said i went there to get my severance agreement looked at she walked out with her for one k about to be depleted over the next several months but the plant they she was told her claims were too weak to give up a twelve thousand dollars severance she was told when she brought up illegal activities and having access to a c entire hard drive and that's where they find their probable payout that is a testimony that is the testimony that was credited that's you're allowed you may have fights about which you're allowed to take much or not but that's how whistleblower cases go your only point would be that the lawyer on the other side has to fess up when they have the information but to think that is how those whistleblower cases start well the two things one is you're on is right they have to fess up when there are qwest they have to produce documents and we didn't say reduce the entire hard drive but we had many requests that would have called for the production of volumes of material within their it's far reaching material throughout the company it's a c hose it dire hard drive but that was being hidden and other than using a handful of documents they pull out from time to time but i think what's what's more telling hears it was never really a key tam action to be filed so what you have and this is the evidence that was at the hearing you have a client who is saying i know of illegalities i was nothing all that specific and by the way out i don't think there ever were a legalities but she said i have all the financial information we're going to be able to put together and mr am long and says to her this is not only her testimony but in a follow up letter it's rare to have this kind of insight a follow up letter by her to the firm summing this up and judge relies on that but it's says we recognize that the f l s a and discrimination claims are weak but those will be the first step and what will really do  is have the opportunity use information that you put your legal minds to to find from these documents not a i know there was a big piece of fraud of this specific kind in some whistleblower act and that this is a let's rummage through until we find something we can threaten them with and i think it's a fair inference from mr eldridge his testimony throughout the course of the hearing not only sell judges but i think the several false denials along the way by mistake mr and long about what they knew and saw that contradicts things like their own time records that they reviewed the boxes of materials so we're fighting this case where where from the outset if the other side had been honest and given us these materials if the fair inference would to pursue the other she would prefer the twelve thousand dollars severance if if the let me ask you this counsel's sorry to interrupt the magistrate judge concluded that the firm needlessly obstructed in several ways but also said ray is march thirty first two thousand and fifteen opinion and page nine of our opposition brief we detail the way in which mrs eldridge was able to survive summary judgment the documents were tremendously against her i mean she had to depositions to say that not to say almost not a single e mail or document meant what it said typical summary judgment standards that can sometimes help you squeak by when you put it in the light of what happened at the outset of this case and this judge scola said called it an exceptional case within the meaning of good year versus hager i think it's enough to find that it was a weak case that would not have been pursued by ms eldridge and that's what she says was the way she thought except for the possibility of using stolen information to make threats that would would get some type of a probable payout you judges there are two important legal points to keep in mind number one under the law the eleventh circuit the standard been for for volatility is to be is to view the evidence in the light most favorable to the non prevailing party that's number one number two the law in the eleventh circuit also is that this is not a subjective standard bad faith it is an object of standard and yet a pelleas what have you in the motivation which is that one little piece of historical fact that we say his is clearly erroneous and undercuts everything else they would have it you infer the subjective motivation of the am long firm in the absolute absence of any objective evidence whatsoever that they ever intended to use any of the documents that were sitting on their hard drive or in their possession for any illegal term looking at the evidence in the light most favorable to them it's exactly what they said we had this stuff we reviewed it two point six hours as a matter of fact according to the time records we determined that it was too cold it was stale it had no use action he said no we didn't pursue it and therefore we just forgot about this stuff and left it there why did she ask for documents and copies of the documents not because she had stuff on her hard drive she'd already turned copies of that over to them should turned over the cd rom should turned over the thumb drives that had her her had the plaintiffs one hundred page document with hundreds of pages of supporting documents would turned all that over to him it was on the hard drive because we forgot what we wanted because there were discovery disputes going on where the thousands and thousands and thousands of other pages that the testimony showed fill brought over a late after the time it expired we had to move for an extension of time and because we wanted to comply with the court's order we gave them to them without copying some of them and so we had no record of what else we had given them we knew we had given him the hard drive now what's the harm what's the harm in any of this there was not a single document entered into evidence at the evidentiary year and that shows that anything that was w anything that was given late including those twenty three hundred e mails there is not a single document that shows that there would have been any impact on the decision of the trial court to deny summary judgment what about the  offset claim shawna first of all the offset was not even asserted in the original answer which was after which was after the first demand for the return of documents had been made the first command was made to miss eldridge and may of two thousand and eight we filed the f s l a clay and in the fall of two thousand and twelve making the point you were so making a pretty sweeping argument that none of this was relevant to the case and i'm saying it was relevant to the offset claims that's not a timing question that's i'm taking it on your terms none of this was relevant ok at the original answer did not have an affirmative defense of offset the amended answer had an affirmative defense of offset when we asked for the amount of damages they were seeking they had none in their letters they said it was nine hundred dollars that was the value of the computer that i had there may have been some relevance to that but but that would be the only possible relevant and they have not shown that there was any prejudice to them whatsoever absolutely none there was not a document put into evidence at the hearing there was not a document pointed to that showed that anything that mrs eldridge supposedly t ever was used in any improper way with the exception of some org charts and i think what they would say is they valued it nine hundred dollars because they had no idea how much you had but they got it all back judge we gave it all back to them when snowboarder to and he gave them better terms of materiality it would have changed the amount of the offset clain to a lot more than one hundred dollars it never was litigated that way you know maybe it maybe it would have but none of it was ever used so where can you show and where does the record here show that there were any damages whatsoever there were none there was no showing in the in the record anywhere that there would have been eating impact on that denial of summary judgment that the trial court said was replete with  carefully at these mix questions of law and fact and see if the fact that were found in the order that the trial court affirmed support the requisite requirements thank you very much