documents that were issued before dot denied the motion to vacate you know we have a very high standards in order to overturn over toward where absolutely or in this case those to two standards on the federal statute are met here and that is that under chevron the record substantiated in fact was not really contradicted that the panel failed to provide mr dashwood full and timely access to one category distorted this issue there were three separate motions to compel that included these documents including at some point specific references to these documents each one of those motions  granted the documents then weren't produced but representations were made by sobel and i'm sorry by respondents that they had produced whatever documents sobel had and they said but why don't they go subpoena them if they want to but of course there was no right to subpoena those documents in pretrial discovery in the arbitration although there was a right to subpoena them to the hearing but every application that dosh or had made for a third party subpoena had been denied so the panel said no we're going to order the respondent to produce those documents the respondent then said we have basically produced whatever we gave so they then get to the hearing and they go for nine days on the last day of testimony when the when seaports accountant is on the stand it becomes a parent that the documents that sobol has are not documents that have necessarily been produced that point to us first subpoena yes your honor if you look there's a there's a long and somewhat meandering colloquy to go back and that day where they come out is counsel asks that the da counsel for dr asked for sanctions that these documents have not been produced that they've been misrepresentation essentially asked that they strike the defense and preclude them from challenging that he had a twenty percent equity stake the other side comes forward and says they argue the merits of that and say well we don't have an objection if they go ahead and subpoena now to bring these documents to the hearing there is then further back and forth about the panel deliberates and comes back and says we're going to order that they produced a quick books which it turned out were documents seaport pad and had not produced the electronic files i can talk about why the native original documents with the necessary documents you want if you need to but the quick books but then which witch doctors council said that's good we need that we should have had that but i also need the stuff from sobel where that ended up back and forth about whether they should bifurcate not bifurcate reopen the hearing and put it off for a month to discovery the last day of the hearing and what counsel for a doctor came back and said was why don't you deliberate and decide whether you're going to grant my motion for sanctions in which case i win presumably maybe i just win regardless on the merits because i might but otherwise i'm requesting that you reopen the hearing allow me to subpoena the documents and then present that evidence the palace said ok let's proceed that way to do closings and then the panel simply came out with a ruling that didn't issue any sanction didn't reopen the hearing and didn't provide subpoena even though when you read that portion of the transcript the panel itself says the chair says these documents go directly to the core of mr d claim and so we believe the panel failed in its obligation in the chevron this case this court's decision chevron to ensure the taj had full and timely access to those documents and when you look at the district court's rejection of that argument the court looks at the statute and says well the da sure can't say that the panel refused to  adjourn the hearing so he could present this evidence because in connection one of the original motions to compel he gave an adjournment ok that part's true but it's apples and oranges because the panel absolutely without a doubt refused to adjourn the hearing at the end on a specific request to do so when it became clear that these documents had not been produced and should be subpoenaed so the court was wrong on that it's just factually wrong it's apples and oranges the assertion there is support for the assertion it's just support for an assertion about a different thing the panel did improperly refused to a upon a request to get that evidence the court then says well they didn't exclude any i didn't refuse to hear any evidence because look at all the evidence you've got to produce again your honour's it's not apples and oranges the question is whether we've got to produce some evidence the question  this evidence that the panel itself decided was directly went directly to the core of his claims existed and they didn't give us foreign timely access for that and it violated the statute the last in the court know you rock they don't it's not a reason to war and so there's no saying there's no holding there there for discovery purposes we decline and your honor i submit that if that were the case that would be under reasonable because it couldn't be th date that they determined at the end clearly these go directly to this man's claims and of course your honor they were the original documents that was an issue we need the original best evidence because there were issues about whether the documents had been produced in hard copy had been altered  they after the fact these were contemporaneous documents they were the best evidence and so we've been unreasonable for them to say you're not entitled to that with respect to prejudice so i believe your honor there the panel did prayers it doesn't seem to me self evident to me you make a strong argument that you didn't get something that was important that you should have gotten but what about the concept of misconduct is that misconduct by the arbiter as opposed to what we might say in court litigation was in the room is ruling or or a something beyond the court's appropriate discretion your honor i had i had the same question and i read the statu because your first blush about what is misconduct you think it's something intentional and the cases we cite never have to be intentional misconduct is something something different from just in the room yes correct your honor but one of the things that the chevron take case makes clear is that one of the things the panel has an obligation to do is provide fall and timely access to court documents and the chevron case is a good great example right because similar in this case and it was sort of sprawling the arguments were sprawling there was lots of evidence second circuit made the point that many of the arguments that which were brought up on the challenge seem to sort of be complaints about you know things that happen that just is the way the cookie crumbles the litigation but they simply this is one category of documents the shipping lines these poor law he's a maritime case and he said these are sort of the most important documents in a case like this and they weren't produced until after the hearing and counsel only had a week or so to consider them before they submitted something and they didn't happen during the hearing and we therefore say the panel engage in misconduct such that not intentional misconduct but in engagements con and they did not secure phone timely access to the documents so if i could wrap up on the second piece i'm a little bit over so the second piece prejudiced the record for the district court there was entirely one sided the panel had said on the last day of evidence that these documents were meant to regulate to the core issue there was an affidavit from the trial attorney who actually has looked at these documents which we are handicapped or the subject of a protective order so i can't describe them i can't use them unless they are they are somehow compelled or produced in a district court case but that lawyer reviewed them and put in an affidavit saying that these were game changers these were smoking gun third judge common sense we could have avoided much of the back and forth below in district court and we could have taken the mystery out of this appeal if when we challenge this seaport simply said you know what we have no problem with this judge here the documents let's look at the documents and see if they actually say anything that would district court find how did he find there was no prejudice one he didn't look at the documents it's impossible iranians for a court to say i didn't look at the documents but i know they could have been material and the lack of them couldn't be prejudicial the only other basis he gave was that doctor had other evidence of lost of profit and losses the problem with that your honor is this issue wasn't about profit and losses this issue was about whether he had a capital morning morning counsel wire turned over these documents the documents that the appellant is requesting are not documents from the party that is in this case they are documents that are held by a nonparty accounting firm and this was an issue that was extensively litigated before the arbitral panel as appellant argument confirmed and as judge berman's well reasoned decision the naing  sure of the arbitration decision in this case also confirms to what happened in this case your honor is that this was a robust arbitration it went on for almost or more than a year nine day hearing the issue of these documents which are again documents held by and nonparty who have access to these documents so let me tell the court what happened with respect to these documents when the question raised the question of wanting to obtain documents from sobel he went to sobol and sobel said we will turn these documents over in response to a subpoena the law firm who engaged so it was not before the court on this appeal also referenced non party discovery in the arbitration process seaport wrote to sobol and to counsel for appellant and suggested that the appellant obtain these documents through the finra rules that provide for nonparty discovery and you can find those citations in the record at a one thirty five a one thirty four and a one thirty seven when the question of motion to compel a briefing was then made before the arbitral panel and to be clear here your honors this was a little gated arbitration there were motions to compel me by both sides it's as judge berman notes in his decision the court excuse me the arbitration panel carefully considered those motions that were made it granted some request it tonight other requests in response to this specific issue seaport did exactly what any litigant should do with respect to documents that had this nonparty documents that it kept a copy of that had been shared with the nonparty where it had it in its possession if they are copying it provided a copy of those documents yes it did your honor  not the originals with respect to the originals what the issue is your honor is there was a thumb drive if mr doctors outside accountants went to see parts outside accountants and took a bunch of documents with them when they left on electronic thumb drive or flash drive and what seaports said many many months before the arbitration hearing is we do not have a copy of that and the only copy the only party who has a copy of that drive is the nonparty sobel and that nonparty should be subpoenaed as judge furman noted for some reason that has never been explained to the arbitration  nonparty subpoenas of other parties in the arbitration on three different instances and you can find the courts the arbitration panel's order with respect to those requests which again this is the appellant requesting  parties in the arbitration but not requesting a subpoena of the nonparty who he had been told had the documents that he felt was important he did not do so then during the arbitration hearing there are two ways to get evidence as everybody knows you can get evidence through testimony you can get evidence through documents mr doctor told our clients and also told the arbitration panel that it that he intended to subpoena witnesses to call witnesses from the sobel firm this nonparty to talk about presumably these documents he provided a witness list to the panel and if you look at ca three four nine you will see the names of sobel witnesses that were listed during the hearing mr dosh or made no attempt to produce those witnesses evidence that he thought was crucial to his case perhaps your honor the documents do not show what he is arguing they show and there is more to be made of making an argument about them not being present than actually presenting the documents to the trier of fact and i say that your honor because there was a lot of other evidence in the arbitration record that showed the contrary of what mr doctors said these documents would reflect mr dawson or argued that he had some so he was a former employee of seaport your honor and he argued that he somehow had an equity stake in seaport and he said that these documents held by a nonparty which were some of seaports accounting records which show this this was a heavily litigated issue in the arbitration and i would refer the court to a pelleas papers  the citations on the record at excuse me two pages fourteen to sixteen of our opposition where we go through in detail all of the different types of evidence that were in the record showing that decisions i don't know whether this was a good decision or not but judge berman's head is that what he was saw in this case and what this court is now seeing is an example of litigators remorse a strategic decision that is made in the provided please repeat the question yes if if mr joshua had made a request for these documents at the appropriate time before the or they would have been provided i believe based on the arbitration record the arbitrators during the hearing explicitly gave mr dr the option to get obtain a subpoena for these documents and the sobel firm had previously communicated that if it received a lawful subpoena it would turn over the documents so in this instance your honor i think that there was reason to believe it and i wouldn't encourage the panel to look at what the arbitral panel said to  argument during the last day of the hearing when this issue came up after all of this litigation because the words that were used by his counsel he was also present are very important the arbitral panel gave mr d er the opportunity to not proceed to closing the record to not proceeding to closing arguments so he could get these documents he requested a break to confer between lawyer and client to make a decision on how he wanted to proceed he then returned in this part of the questioning the panel asked him to consider how important this possible information that he may get would be to his client's claim that's it see a eight  one after a break mr dr and his counsel returned counsel thanked the panel and told the panel that it had discretion to take this question under if eyes met he could have returned and said yes thank you panel of three federal arbitrators i would like you to issue a subpoena to the sobel firm he did not do so he told the panel it had discretion you believe by believe they would have and i believe beyond what i believe it supports the it would have if you look at the arbitration transcript he also told the panel that it was within their powers to consider closing arguments and to consider his request both for sanctions and for a non party subpoena as part of issuing its final decision which is exactly what the arbitration panel did and told the panel and this is that c eight zero six that if the panel thought that respondents actions to warrant any ramifications they could so rule in their final decision the other thing he told the panel the which has not come up but judge berman emphasizes and i did not hear an argument is that after all of this discussion and all of this litigation the chairperson of the panel told the party is that she wanted to make sure that they had done their job as an arbitration panel and i'm looking at the record at eight six four eight six five she told the parties i would like you to state for the record whether or not you feel that you have had a full and fair opportunity to be h appropriately focused on this language in a case that is before him under the federal arbitration act where the standard is for overturning under ten a three to not a fundamental fairness when you have a party on the record stating that he had had a full and fair opportunity to be heard judge berman said that this was a concession from behind the proverbial veil of ignorance which speaks volumes it says th appellant is unhappy with a portion of that decision he thinks he should have got more money for his claimed equity stake after he got that decision he decided the panel had done something wrong that is litigators remorse that is the opposite of what the federal arbitration act is allows a little get to do and i see i'm out of time but one final point with respect to the chevron case is i believe in the offered a subpoena was at the very end they offered it right they offered it along with a continuance but then they said do we really want to continue is why don't you think about it we're not sure this is the best  did ask for it and that is the only place you can begin and there because that is the only time it became clear on that day became clear to mr merola doshas counsel and to the panel that contrary to the representations they had made there was this category of documents that the chair on that they said go directly to his claim there was lots of colloquy about how to deal with a remedy there could have been a subpoena and a continuance there could have been a sanction at the end of the day what mr merola said is why doesn't the panel deliberate i want you to strike their defenses if you don't strike their defenses i want a subpoena issued and the continu and then it's correct then he said thank you you've all been for referred to me but for the ten they ignored that relief so that that's again apples and oranges your honor he asked for exactly this relief the panel offered it he said thank you i'll take that and they didn't give it to me and it goes directly to his access to materials that the panel itself at that moment said was highly highly relevant you asked the questions right up front i want to hear them you said why haven't you produced these documents counsel said these are not documents of a party to this proceeding that's categorically false you are categorically falls under party sobel was their accountants so they cave sobel these this information is part of due diligence for sure and another person miers partnership interest so so sobel was the defendant respondent mr meyers accountant mr byers in support gave them this information as an accountant it bill's information it doesn't reflect anything about sobel it's was that he was but just like a lawyer is a custodian all seaport had to do the reason sabol wanted to subpoena was because sobel got the information from his client seaport so sobel said well see point isn't giving me permission to give you this so you'll have to subpoena me it's a completely misleading canard that it could have given this document as well of course they could have judged and they said they did and the panel when you're asked the eyes why didn't you subpoena why didn't you subpoena because these documents were their motions three motions to compel the called for these documents each one was granted and so there was no reason to subpoena so well especially after they said that whatever sold well had we gave you which is what you would expect right because all sobel did was come over and get some documents from there but it turned out that wasn't the case and with respect to the other parties that third party they did try to subpoena judge all of those subpoenas were denied by the panel here and that last at the very end of the hearing that that wasn't the case and in the very end the arbitration yes and in the in the in the pages that i that i cited you'll see mr merola explains it he says it was like it was because mr paul will who was the accountant the accounting firm who audited their books was testifying on cross examination he explained that essentially what had happened was when sobel came in in two thousand and twelve that was before the dispute actually started so no dispute no reason to dissemble no reason to cover anything up it got a snapshot in electronic original form of the quicken books and other accounting records and it had them after the dispute and in the arbitration they never produced those documents so they said they had what they have produced are hard copies of subsequent accounting records which of course don't allow you to look to see whether they were changed or whether whether there was accounting records that happened after this dispute occurred or consistent with what the facts were before the dispute occurred and once it became clear during that testimony that those documents sobel had were different mr roll stood up just before a man he  made a major stink over it and he did demand that if you are not going to strike your defenses that i get the subpoena and i get to get these documents he did the man that and again the evidence of prejudice is undisputed here it's undisputed the panel oneself on that day said these were directly relevant to of his core claim mr rowley has put in a declaration is an officer of the court saying i have reviewed these documents i can't tell you what's in them but they are a game changer they are a smoking gun the fact that they have not produced them they could just come to judge from and say look this is all hogwash here's what the documents are she made these arguments to judge she said well these doctors are just like lots of other documents that came in everyone has their own litigation strategy but if i looked at these documents and i knew that was the case i would find overproduce and i'd say here they are not in the see here let's move on the fact that they haven't and they're still defending that position should be a red flag to this court and certainly provides credibility  roland that these were in fact highly relevant documents in your honor i'll end with this obviously arbitrations are supposed to be expedited arbitration but however they are supposed to be fair and the most fundamental fairness we have in our system is you don't hide the ball in the sky agree that you produce what needs be produced of the parties and get to the merits and what the record here shows is a ridiculous hiding of the ball when they say what seaport told us was  that we should so but we'll turn it over to a subpoena that's like me giving it to my lawyer and saying i don't have it anymore but you can subpoena my lawyer and i'll say that's ok disingenuous that's hiding the ball  so your honor i think there is nothing you heard in opposition to this appeal right now that contradicts to undisputed facts they did not have timely access and full access before the hearing closed  these documents that chevron required and unlike chevron the president's prejudice here is clear it's clear from the panel it's clear from this tomorrow it's clear from the fact they're still hiding these documents and the district court most importantly district courts finding of no prejudice is based on a failure to review these documents i don't know how you can say without looking at a document it would make a difference to a good trial lawyer and sue to say well he had documents about losses and profits which has nothing to do with this issue and i just think the district court misunderstood that so for all those reasons your honor we think the award should be very candid and a minimum should be remanded so that the district court is required to review these documents and hear the arguments