i am a carrying today this is the license one appearing today on behalf of the plaintiff apoc robert pot and i believe there are two threshold issues to discuss first the first of which i hope doesn't take as much time the first issue is whose knowledge is sufficient to trigger the running of the statute of limitations and as i believe the district court judge correctly decided in the end it was knowledge that mr b possessed as he was the only other member and he was the only member that wouldn't be characterized as a wrongdoer under the allegations of the complaint and the point of that is if the wrongdoer under the allegations of the complaint accumulated knowledge its imputed to the l l c then the statute would run before anybody that would act on behalf of the l s t would possess a fish knowledge yes and as i recall judge mausam said that if he were to hold otherwise i think his word was that would be weird yes that was his word and he was really from the bench and he worked through that and i believe his ultimate conclusion knowledge either knew or should have known and one would read when was that knowledge acquired yes your honor and i agree on this particular record what's interesting if you look at the timeline it's an older case but the relevant times is very very smart this lawsuit the underlying lawsuit was initiated in december of two thousand and eleven and the relevant time runs only five months to may of two thousand and one and the reason that is true is that the parties on this record record agree there was a bankruptcy filing in the bankruptcy filing working backwards cold running of the statute of limitations on may want two thousand and twelve so we have a five month period from december through may that's relevant and as i pointed out in my true that in the complaint relevant dates are alleged but that appears to be after acquiring knowledge counsel means judge by the so the there is a letter from july twenty fourth which would be outside of that five month period to mr adelson when when did when did counsel become aware that adults and what was involved in the case good deal that was in the record before may first of two thousand and twelve you got a hearing in march in which you're accusing them of conflict of interest well the question was raised but it was raised very politely and it wasn't with any information to sloth anything for example if you look at the letter in july two thousand and twelve which is after this that you would have been told it's a very polite inquiry majority owner and mr prentice minority owner and i read that as an expression of concern and asked to consider consideration and perhaps an explanation but not of any knowledge impartiality in this matter and says it will be challenging but i think we're left i mean first of all we're on summary judgment i think we're drawing inferences and conclusions that's not supported by the record for permissible under the standard i don't read these inquiries and these questions as showing anything other than a concern asking for consideration mr bo is very clear that in his statement of what he learned and when he learned it when he drew these conclusions but that letter is in july the statute was told almost two and a half months earlier and the defendants have the burden here the record is sorely underdeveloped on the pivotal issues and i don't think on this record hearing to disqualify counsel it was not and that's unfortunate mischaracterization in this record if you go back and read that part of the record which i quote in the briefing of course mr prentice was the primary manager and did not require the exclusion or terminations of any of the existing counsel it just required that somebody else be there besides mr prentice running this l l c for the purpose of the litigation and the characterization that it was to disqualify them and replace them is much more than the motion and the memorandum but just the motion of the memorandum is explaining mr prentice is a key role  and i would just conclude i'm being mindful of time but i would just conclude that it is a very short window of time and the record is very underdeveloped and important is on the defendants and if the records inadequate he and i would posit that the record is actually overwhelming that that from the very start of this litigation mr bott was fully aware that the of the adversity and the misalignment that he claims in this case and in fact he testified to that in a deposition in the underlying case and he was tough speaking in it and that's in that's  art to sixty three to sixty eight and he he was referring to what he thought when this first when this litigation was filed and he believed that that essentially the l l c his lawyers were taking the wrong side and that's confirmed in his in iraq a tory answers and again the news and it's it's just overwhelming that from the early events in the litigation mr bott if you didn't know for sure he certainly he and his counsel certainly should have known about  about the adversity of mr mugabe and the mark was firm and let me just address this little issue about that that the council relegates to a footnote on what what the firm knew for sure the firm  filed a notice of appearance in the case in april of two thousand and twelve in oregon and like probably every rule set of rules of civil procedure oregon rule of civil procedure nine required that the required the defendants to serve everybody with the notice and this is raised for the first time in a reply brief it was not read below and in fact in the argument  below counsel for mr bott said that that he learned that they learned of the representation in february and we actually corrected that and said it was april but it was not raised below and it could have easily been added to the record if if  if that was an issue about you know whether they actually got got service we could have pulled the archive file but that was that was discussed below it was not raised below and i don't think it's fair to raise that of as some sort of problem t purpose of filing filing this proceeding and a judgment had been made it's not this was under the under the actual language of the l c agreement it was  the management of the l c was in the hands of mr prentice and his management team and they had and they made a decision that the management team and counsel had made a decision that in fact that that provision with that was in permitted them to proceed in this way to bring this action to expel mr bot and or you know this is not with respect to expelling mr bob the question is conflict of interest of the lawyers they're trying to represent more than one interest in the should have been obvious well i think that the the answer is that that is sort of the this is a chicken and egg problem is that who speaks on behalf of the l l c and from all the documentation of the l c it appears that mr prentice and his management team spoke for the interest of the l l c because he was the managing member under the you know under the the way this was set up so it wasn't it wasn't looked at as a as a conflict at that time and i would point out that the we went through the three bar proceedings and they were completely cleared of this and i think you know they were not able to rate to to challenge the the state court ruling disqualifying statue in taishan question can be a jury question but i think here the evidence is there first of all there's no dispute about the underlying the underlying facts about how this litigation unfolded and how mr bott responded to the litigation and so we don't think that the underlying facts supporting this are at all in dispute and what we what our position is is that is that is that anybody knew or should have known and in the position of mr represented by counsel that there was that he that they were proceeding adversely to him and he could have raised this claim and we just think that not only is that it should have known problem but they really didn't know this and and they expressed these concerns and they didn't have to know the full extent of their harm in order to have the statute of limitations clock start taking ok ok you know also i i would add that we you know we raised an alternative ground to affirm this case based on oregon law and i you know i just wanted to and this actually also sort of ties into the use of the disjoint interest agreement as part of you know as part of the statue of limitations issue as well and and you know this is laid out in our brief but our position is that you know the way that oregon interprets statutes is sort of a very strict constructionist approach and it's very clear from the from the client that you did and from the that the joint interest privilege that's contained within that statute doesn't create sort of joint representation and i know there are decisions from other courts that are based on on maybe the common law of those courts that can suggest that there is some sort of joint representation but that is not clear from the plain text of the statute as would be interpreted under th carrying out the race but july two thousand and twelve letter which is outside of the of the period may reflect knowledge of it had before you raised the deposition and that's a box what do you think you think the single most conclusive piece of evidence that  that shows that bought new without the conflict i think i was i think both his deposition and his i think probably his deposition testimony a occurred it occurred later but he was speaking he was speaking about what you know kind of what he knew at the time but it occurs in connection with with substance you know some in the state court litigation so what specifically do you have in mind that he said during the deposition that supports what you're what you're just representing well so what i will what i have in mind is where he sort of said and i think it's quoted in the brief where he said you know it was my understanding that that this was going against you know it was going against me but it should have been going for me sounds like everybody has got a bad rule well i understand that but but he but but but what it what it reflected is that he had an understanding of the adversity of or the that what he viewed as a myth misalignment as of the filing and you know actually the other big piece of evidence is just how he responded with this with not only he responded to litigation very aggressively with a counter claim against the company and to dissolve the company and in a counter claim against prednisone and and then the motion for a preliminary injunction to maybe in some ways you don't really have to infer much from from the fact that people take a litigation position that that's very aggressive that responds aggressively to been issued by mr prentice university would always be present and mr bott was not a stranger he was a majority owner and a member of the way this action was initiated  would be present the fact of adversity is what makes it confusing is what makes the jury question the fact of adversity does not help the defendants it actually helps mr botts explanation of why this was perhaps confusing and i think if you look at that july twenty four letter two thousand and twelve letter with a question i have this context it's a genuine letter of concern to peers to be written in a way to suggest to the corporate council that take a second look at this were puzzled by your actions from a lawyer it doesn't make allegations i think that letter helps but to the extent we're disputing how to read or interpreter way that letter that's a question a joint interest agreement is the problem and if defend them can only prove in a joint interest remit is permissible so they can win the appeal that's not the issue at all it's what happened under the joint interest agreement for example where she learns what's happening and this is of course inside the statute of limitations after it's been told that's it page thirty one of my  the allegations of the complaint half of them reference the joint interest agreement but it's what was done under the joint interest agreement in this particular case it's arguable that one was not at all appropriate but even if you were to recognise the nuances in this case as defense counsel and say all right we have some common interests and to be sometimes some things that will be protected under a common interest agreement a joint interest agreement you would have to be incredibly disciplined you could not just unify the defense has happened here as is explained through example of page thirty one in the testimony that i quote and that's what's so severe in this case plaintive had a slip and fall into premises mr prentice is the owner personally liable and also the owner of a corporation it's not that simple where the defense can just aligned against the plaintiff not at to thank the bench i wasn't sure how to handle that i very greatly appreciate the way that was handled i was not expecting you i was not expecting such a perfect accommodation but thank you all so much