honor i think this case can be boiled down to two simple issues one is whether or not court rules and court orders must be followed and secondly whether or not the failure to follow those court rules and court understand it is difficult to argue that the trial court himself violated his own orders but i think in this case it is latently clear that that's what happened california and i can tell you one of the distinct advantages to trying cases and progress is that in essence most of the issues are pretty tried and counsel some months before i have the ability to restrict the record i can find the record to the issues at hand and when the court rules in the court orders are going to be violated there has to be good cos this case the violations will almost than demick from the beginning but most importantly the rule sixteen violation in which the court allowed at the last moment and a new cause of action and cause of action action based on a very specific statutory set of rules and equally important was added to the complaint required very specific items of proof for example that individual themselves out as an immigration consultant show prejudice to my client number one i believe i can clearly show prejudice to my client based upon what happened after the discovery order was changed but equally important  prevents the addition of causes of action for any reason and less do diligence as shown by the point that in asking for a last minute change in the pleadings plaintiff's counsel demonstrate that the business and professions code section should be brought into the case was a document that was entered into the federal court record in december of two thousand december of two thousand so that record sat there during the entire time that this complaint was on file the discovery was done the discovery was closed the pretrial order was issued and then it was raised at the very last moment and to get to the point of the order then the judge allowing me to do discovery and fact the judge allowed a verse small window for me to slowly take the deposition of the plaintiffs i took the deposition the plaintiffs and it's to never they declaration along with the portions of their deposition responses which i think would be kind to say directly contradicted what they said in their written discovery responses that have been filed or served on me years earlier to the extent that even the contact with the defendant the individual defendant which in the discovery responses laid out a blow by blow description of the parties interaction with my individual client complete with dates and things that was stad when the deposition was taken a few weeks before trial started they denied ever meeting ever talking or ever communicating with that offending but the violation of the orders go much larger than that if we go back to the federal rules basically trying to prevent trial by ambush it wasn't just that this cause of action was at that point it's added scores of pages of documents that were faxed to me a few days before trial virtually none of them listed in any sort of the exhibits weren't documents that i was supposed to interpret and figure out what they were and list the ten new witnesses now the fact of the matter is the trying to stroh's to only call one of those but when you look at it from the standpoint of a litigator attempting to get ready for trial literally on the eve of trial how am i supposed to guess which if not all of those parties a witness which had not been listed as recently as a few weeks earlier in our pretrial conference order had not been listed anywhere the rule that the judge a particularly to that trial as to the sort of things whether it be the the witnesses or any of the documents in many cases or in comprehensible they'll fax to me anywhere between three thirty and midnight on the day that the plate was supposed to conform with t there was absolutely no way that i could put those witnesses in those documents into a context so that one could properly prepare for trial so i made my motion for continuance mainly motions during the trial and the court's basic reaction was and we have the quotes in the record in the briefs if counsel or the defendants were in some manner aware of these things well then there really isn't any prejudice so for example to bring it down to a very concrete case the point agreement which had been entered into the federal records in december of two thousand and had not been produced had not been mentioned i wasn't the attorney of record for the criminal case that's very clear but the court took the position well at least the s i was representing that somehow or other it was going to come into the record and it did and that was generally the reaction of the trial court to every single offer made by the plaintiffs that was not included in any of their prior writings prior to either in the case of the request of modify or to amend the complaint a few weeks before the original trial date and the addition of all of these documents which by the way actual record of the exhibits that were submitted by plaintiffs literally as the case was going on the trial was going on because the plaintiff did not follow the court result of the failure to follow the court rules the court order so that i could properly prepare for trial properly look at these exhibits i did notice that exhibit was short of a full exhibit until after the car because it had never been given to make it had never been provided to me in this document after document described in the brief in which that sort of thing occurring remind me of the timing of th when when was the overnight faxes come in the overnight factions were june what we had our final pretrial and june sixteenth ok and the court ordered did right up to and including trying to do were you able to demonstrate to the district court how many of those were documents you had not seen before the ones that i had not seen before that were actually introduced by dad the vast bulk of those documents were not introduced so i was left with the situation on those last couple of weeks trying to figure out how did these for example there were a number of documents that pertain to wage claims  payroll lists that sort of thing that would not introduced and i was essentially trying to figure out what meaning did those documents have in the context of the trial this coming up and that  i filed one of my primary reasons the motion for continuance so that i could get a handle on number one having plaintiff complied with a court order and number two then seeing to it that i'm able to do the appropriate discovery that i needed  idea most of these documents came from the board that they couldn't put in documents that you hadn't seen before that was part that's essentially what the scene or had noticed off and in terms of the organization the that that get addressed that all of the lack of organization you had to guess what they were but a little only from the standpoint as exhibits came in as they were presented i was handed a copy and then i was trying to relate those copies to what i had attempted to index in my own folders and in fact at the end of the trial i ended up providing the pendant with a copy of his  address and or argument the constitutional claim i'm prepared to address that i'll start first with the claimed abuse of discretion when the court granted the leave to file the second amended complaint counsel's not quite correct that the only document was the plea agreement intrade in december of two thousand there were additional exhibits namely the actual so there wasn't this significant gap of time nonetheless that was within the course discretion to allow the and then it's the same kind of activity that was complained of in the second in the first amended complain which was the basis for a breach of contract in a fraud client and as the court has noted judge were granted the defendant's additional time and the opportunity which they took to conduct additional discovery by taking depositions of the plaintiffs how many new actual issues were involved in that memory none there was simply a new cause of action asserted for statutory violation and as far as the pleadings go as far as the evidence go the facts were still the same namely that the plaintiffs delivered money to the defendant to have legal services provided so they would be legal workers in this country and it never happened because there are no new facts why were why were depositions authorized and why and what was the point of the deposition i think the point of the deposition was that judge where was giving the defense counsel an opportunity to conduct discovery so the defendant wouldn't be prejudiced as a result of this new coining councils that had to do with holding oneself out as they immigration consultants or whatever the it's a that's true that's but that's a summary for what the activity is it doesn't change the activity and i think the fact that the judge where allowed the defendants to conduct discovery points again to the high standard that the defendants have for abuse of discretion judge where it's ingle assignment judge have this case from the the purpose of rule sixteen yes it is your honor but it's also a purpose of the longstanding rule that the trial judge is given discretion due to how these things are conducted its significance that all these complaining documents coming through in the fax machine only one and as i understand it that's in dispute was introduced into evidence and that is the criminal police agreement of one of the defendants it doesn't matter that she had a different being completely forthcoming a party will say oh i'm i'll give you everything here is a whole warehouse full of documents just for you when there are only three that might be of interest and and i  trial's coming confusion you know it's easy for the members of the panel and for me i wasn't there try a look back and shake our heads and say this is not the way this should have been done and i'm sure mr the audience would say if i had it to do over i wouldn't have done it in this way but there's no showing that there was an intent on mr hall's part to cause confusion on the part of the defendant and agreed there was a lot into by the defendant so i don't think there's been a showing that there was an abuse of discretion that members of this panel sitting in this trial judges or in previous life as trial attorneys might have done things differently but there's nothing that we see that says this is completely off the charts what judge where do it here and no evidence of prejudice well that may be it may be the latter ground i'm troubled by the first round i did try a lot of cases we all have and it's frustrating to play by the rules and then have the you can't get away with sloppy lawyer even if the intent isn't to create confusion knowing that if the trial judge isn't going to force the rule that darn difficult to get the appellate court to step in and under the abuse of discretion but what it does is the minish the federal court regime i i find that i find that bothersome i can appreciate that your honor and i think from the record judge where found it bothersome because he was critical of the defendant's conduct it's not as though he simply ignored it but taking into account the rights of the parties particularly these emigrant health care workers he decided in his discretion to allow the amendment and all  the exhibits want introduced into evidence there was no document introduced into evidence that the parents hadn't seen before no surprise document i'm not suggesting that answer opinion the court should stand up and applaud for the conduct that occurred well but i also don't believe the court should step in and reverse the decisions of judge where who was down there with four years in the trenches and i don't think the plaintiffs themselves should be penalized for what we can now say as floppy practice and i don't think it detracts from the rules for the court to state is that true many times these are the rules and this is the way we expect it to be done in federal court t is conduct that does not amount to an abuse of discretion under all the various standards and theories and uses that the ninth circuit has supplied with respect to allowing the plaintiffs in getting witnesses defense witnesses who they thought they had arranged to were subpoenaed who were out of the country and so the court again in the exercise of this discretion allowed mr wood to number one it was not simply a plea agreement that was submitted the plague remained is the document that was filed with the court in the summer of two thousand there are also other documents the attorney's letter that was submitted was they had put as an exhibit those documents subpoenaed from the u s attorney's office and that was that i did not see those documents until they were literally faxed to me those two weeks before trials two weeks before trial what was the what was the prejudice then at that point in time your honor i was dealing with not just those records but as has been it needed by plaintiff's counsel scores of other documents i actually did not believe that one would at least doubt it's kind of an inmate it did and i did not believe that document or those documents would be admitted frankly when you look at those documents and see how they measure up against the causes of action or pled in the complaint it is my position that racists at trial those should not have been admitted they went far beyond the scope of what was that issue in our case and in fact the criminal those exhibits on the first day because at that point in time i had that whole pile of it just have a did you file the zero in on the prejudicial effect only when it came to them actually taking those out presenting them to the judge and at that point in time we argued quite strenuously against these documents should not come in they go well beyond the scope of what we're dealing with here it prejudices all of my clients quite and this was specifically in reference to the criminal document there may have been quote another lawyer represent him in the in the criminal matter but these are matters often pertaining to the wrong status knowledge testimony matters that they would be expected to advise you about as to their counsel and therefore the objection to using it as evidence on the grounds that it what it was initially disclosed which was not that was incorrect it was not referenced against in that particular manner in the pretrial conference document the client would be expected to advise you why not when you were in trial when you're in trial those orders if they have been complied with back when they should have been particularly the plea agreement then they could have been dealt with appropriately and i strongly suspect