your honors i know that you have read the briefs and i know that you would not appreciate my repeating them and i have no intention to do so i've simply want to make a couple points of emphasis and then i would receive the balance of my time to respond to questions and any comments by  i have to credit counsel for a very lovely turn of phrase but i strenuously dispute the characterization we genuinely believe in this case without hyperbole that this is a situation in which a manifest miscarriage of justice has occurred my client has been deprived of an opportunity to try his case in the words of the rozerem versus fourth motor company case the case that was tried was not the case of the facts it was the case of the hypothetical set of facts  last performance rights of the podium that had been played for several well in the context of what was known at that time your honor the podium tape was a nine minute tape which consisted of nine approximately ninety seconds of mr  material and he structured those transactions on the basis of a per copy thief because there were a lot of copies made but if we take the damages that the jury ultimately awarded and multiply them by the number of tapes it still comes out to of material publicly performed there was six minutes of material also publicly performed we submit and mr to mr lynch as stated in the sworn declaration that he would have indeed formulated a different measure of damages and you're not suggesting that we s an open question well certainly he should be at the soonest but it sounds to me like you want to reopen the prior ruling with regard to the indirect damages claim which was which i think it was the case based on the ruling  panel so you really are asking us i think to to reopen you want to hang on to the judgment but you want to expand your theory of recovery by getting back into an issue that previously  worth of of material why does the difference between ninety seconds and six minutes make a difference with regard to how you would have tried the case since you knew about the podium when you tried what it would have made a difference because if it would have open have suggested to counsel and certainly if we have the opportunity to tim tim we try on the direct damages part of the case we will pursue the theory of quantifying and licensed the value of a license granted for what amounts based upon the distribution and copyright the loop as well as the podium tapes are both violations of the performance right because the quality of the performance rights violation which was withheld and and concealed by tr manifestly and massively different than the quality of the performance that we didn't know about i pods or getting hung up on this but i really am hung up on the podium tapes because i don't understand what the differences between the used made in the podium tapes it perhaps speculate or at least conjecture is that we never had a chance during the course of the trial to develop the discovery that would have allowed us to determine in part from trent west's own internal information how they viewed the importance of the customers the prospective customers are sitting in the waiting area waiting to see a sales associate well to take this point right i don't understand why that's any different i'm confident that if we're allowed the opportunity to develop this evidence we will be able to confirm what i believe is a matter of common sense is true which is that when you have a group of people coming on the solicitation of a street offer to sell a timeshare most of the people who arrive in that location come with a commitment that they're not going to buy anything they're go testimony of its executive vice president charge of this process that a vital and essential element of every timeshare sales activity is a compelling video to put the buyer in the picture that's his words so they admit i mean is the king of during the relevant period a billion dollars plus of these units so they know how to sell these things and i would suggest to the court that the a vital and i think we will be able to develop expert testimony that confirms this because i believe as a matter of common sense i spell something to somebody who has a preconceived commitment not to buy it it's vitally important what you how you use your first moments with that person and particularly in the part part of the presentation when the presentation when you're not face to face with a salesman where you're just sitting waiting being left alone and passively on a screen is what image is seductive images mr lynch's images of exotic ruled that they were not qualified and of the doctor tests to be experts but she did not exclude that testimony as percipient witnesses who testified about custom and practice in this business but they never got to testify about that because literally days before trial the understanding of the context at the time and why this withheld evidence is so so quitely significant when when the court considered summary judgment the first time she says she denied it and said that the temporal relationship was enough of a  we're talking serious dollars even if you're talking about a one percent causal relationship so she said there was a causal relationship then after discovery was closed they present a threat that's aeration saying well we have to  evidence and he did not what he did was to argue the facts should not have been sufficient to change the ruling because it was a limit it's just a statistically insignificant amount of evidence of what happens for a period of months and two offices out of a total available testimony of these other witnesses about causal relationship and they're in their early and this court confirmed going to feel that he basically had procedurally failed to carry forward his burden by not producing any affirmative evidence but in fact time what was part of what was withheld from the court was the fact that indeed it had not occurred that even in the two offices they stopped using lynch material because we now know that it least one of them and possibly both we don't know because sales and no increased increase of risk rescission so it is manifest that what those declarations persuaded the court at that time whatever they literally said if you want to pick them apart they persuaded the court at that quantitative basis and this is if i go back i don't want to leave the point with regard to the actual damages just leaving just taking what was presented at the trial and actual damages mr lynch presented his damage analysis is that even at his per unit duplication rate the damages should have computed out to three hundred eighty six thousand dollars the jury actually awarded eighty eight thousand dollars now they did not they were not required by the special verdict to explain how the computer that number but all they knew about trying was activity in making that decision was ninety seconds worth of stuff before the sale and the take on tapes had they known that in addition to that trend west had made tens of thousands of public performances in what we contend is the most critical phase of the sale process which is getting the people out of their reluctant mood and into their maybe i'm interested in this mood which is the loop tapes how do we know that the jury might not have made a different judgment and given m and much more substantial part of even that three hundred eighty six thousand dollars so even even at that limited level he's been denied a fair trial because our burton i think i don't think there can be any fair got that there's been misconduct here the nine hundred ninety seven loop tape the one that was destroyed was not identified or produced in a second supplemental production just before trial and then this is on the timeline that the council was kind enough to create july twel an injunction to assemble and turn over all of the tapes they're saying that we made a motion for the court to order them to assemble and turn it over to us for destruction of the tapes and they simply before the judge would rule decided well that's a good idea we'll just destroy them ourselves in terms of what was actually honest look tapes that we have two issues do we know we have we have a destruction of evidence issue as it affects discovery but we also have efforts on the part of the defendant to stop committing further violations of the impact on discovery all i'm asking you is why isn't it appropriate for a defendant to try and take action when a lawsuit is filed against it to make sure that it is not continuing to engage in infringing conduct on three applies in this case whether there was an abuse of discretion by the trial court failing to provide relief from the judgment in order to obtain relief plaintiffs must show by clear and convincing evidence that there was misconduct and as a result of that he was unable to produce a fairly present his her frock they alleged fraud and they can allege fraud misrepresentation or misconduct under the which were not my words by the way but a quote from a court of appeals but i like it and it brings us back to exactly that issue that they are trying to show that there was fraud because it serves their interests to prove i i'm not sure your honor and i don't understand the emotion in terms of pleading some of this has been going on from the very beginning there's been a lot of shifting sand in this case from one  i would like to say that you're right and i'm not prepared to say that it's not a pleading of course the motion the motion is there attempt to get relief from the state for some specific relief i'm not going to if you if i'm sitting in a truck or and i think you have a lot of relief you intentional and as a possibility of misconduct something less than intentional and i took my cue from that your honor you may be absolutely correct that the only thing they asked for is for the court to find that there was fraud and on the basis of that fraud  relief from state i think you may be absolutely correct i took my cue from the court's order and considered whether or not it would be misconduct as well i didn't want to point out very much that is not intentional or more to the point that there would be that my point would be there's no clear and convincing evidence that there's fraud but more to the point that there is no abuse of discretion if the i found that there was no intentional behavior and of course that's the test here i get the impression very clearly that what my opposing counsel would like this court to do is to make that decision themselves about whether or not there was fraud as opposed to consider which of course it is discourse to th whether or not in deference to the trial court whether or not the trial court was correct that there was no fraud in these circumstances and if you like me to talk about those facts that was one of the things i was going to do is talk about the facts that were presented to the trial court and how they wouldn't show clear and convincing and certainly wouldn't show any abuse of discretion in regard to that question that is intentional concealment in regard to that and i did prepare t partial chronology plaintiff asked for all the tapes in discovery that was the very first thing that came out he was presented with some tapes to reach and in regard in response to that he also asked that those tapes be characterized and in response to that the tapes were characterized now there was not a follow up to that by playing up and believe me i am not trying to suggest that they were at fault as they say we're trying to suggest all kinds of just is what the evidence was about what the parties  there was no follow up to ask about what the particular tapes were used for in response to that question trend west never denied that the tapes is that they used mr link just materials that was not what their thesis was based upon their case was based upon the idea that although they used the material they had permission to use it it was not necessary for them to hide the use of that material because they were simply arguing that they had permission to use it all along that mr stern's deposition he was asked questions about the tapes that were produced and he answered those questions now he didn't talk about the tapes he wasn't asked about them did that does that give some indication that he was lying that he was concealing the loop tapes i'd suggest that it could but likely does not end the obvious it was the intention of trend west to give them a loop tape which was not did not have any infringing material they would have it all they wouldn't have partially stripped i that is counsel for trent westenra it was that to be the case i don't think counsel for plaintiff recognize that to be the case what i'm talking about is whether or not there is there's clear and convincing evidence that it was trend west intent to hide point that mr stern's made in his deposition is he thought that it had that i think he thought that all the tapes had been produced and then the point is of course in regard to the destruction of the tapes exactly what this court was discussing before that mr stern's after the verdict presented in this case and some time after a motion for a preliminary injunction had been file directed that the tapes be destroyed now we don't actually know what we don't know the earliest date is october twenty two it may have been after the the injunction order was entered or it may have been before we don't know that information is just terms recollection of the date was completely faulty he thought it was earlier than that so those tapes were destroyed but they were destroyed under the circumstances that the opposing side wanted there to be no infringement  but we could have no infringement by for example sending all the tapes to you correct correct now what what the other side said is that their complaint says that they want to have all the tapes turned over to them for destruction it appears that they asked for all the tapes to be that is in the motion for preliminary judge and they asked for all the take home to be requested back or at least that notice given to everybody this day also a little difficult i heard and you don't even provide got until july of two thousand and one is that correct no that's not correct the notice when i'm in july of two thousand and one saying that they had been provided mr lynch's declaration that except the record one now what they had asked for is that in response to discovery is that each of these tapes be indicated as to the reason why it was used that question was not answered and it was not pursued whether there was informal discussion i don't know but nothing on the record shows in response to my question he said that had they known of the loop tape they would have presented different theories of damages depending on the tape  under the copyright laws and i'm afraid i don't know whether the answer is whether it would be inappropriate legally i expect not but i don't know the answer to that and whether or not it would have been practically something he wanted to do something else altogether that would have been some that would have given him a different measure of damages the district court the district court on the motion for on the sixty p motion that if we calculate the loop tape up based on its duplications value that we talked about three hundred dollars clearly as you know being consumed in the last fifteen minutes and in arguments here yes but if you were could request performance damages you might you might come up with a substantially different figure you would come up with a different thing or in terms of licensing that true the licensing would be determined a different way and i don't know what that number would be what measure damages did or did mr lynch speak on the take home tape which had six minutes of his material on both the take on tape and the podium tape he s measure of damages correct ok but he also testified that he only does it one way and that was the testimony that was in the is i think is that it was trial testimony may have been his deposition testimony but i believe  trial testimony in which he said i am not in the stock business i do not sell my images the only way i do this is if i get the carping now later a makeshift for the purposes of this argument obviously enough the look tape in some kind of wallpaper when they come in and that is to set up an image that's absolutely true but then the podium tape the attention is drawn to the podium taped in the part of the process i think it's a very much different kind of thing in which one case there they're asked to focus on the images and in the other case it's simply background i think the idea that the loop tape was so much more important because it was the first thing is a make shift argument for these purposes i wouldn't expect based upon this cringes testimony of how he charges for these things that he would have done anything different in that regard at trial than exactly what he did the other point obviously enough is the indirect profits and i would point out that although the court in the first summary judgment mentioned in regard to indirect profits that there was at least some temporal relationship the court understood and ruled in regard to the second summary judgment motion that the temporal relationship wouldn't be suspicious under the under the law of this circuit there has to be something more than that there has to be some evidence that there is a causal connection and simply the timing want to do it there was no evidence presented in regard to the second summary judgment none whatsoever that would support any causal connection it was not presented by pla attorney in any regard the court did not need to rely upon the evidence immediately anecdotal evidence from trend west trend west did not do a study of the impact but trend west did have a couple of occasions in which some tapes were not used trend was never said by the way that these rulings three offices or anything of the sort if you take a look at what the decorations say they're very clear that at a certain period of time in one office th office they did not use podium tapes it doesn't say anything about contacts in regard to that office even though that same declaration talks about take on so just in that office they were not using the podium tapes and it didn't have any impact on the sales for similar start up offices that is not statistical evidence of any sort it is merely anecdotal evidence but it does indicate that to some extent the use of these tapes doesn't have an immediate impact and the burden with playing that show that these tapes would have an impact would have a causal connection to the prophets of trent west and they had nothing they only criticized the position of friend wes they did not come up with anything themselves so that the indirect prophets which has been decided is the law of the case and i'll be reopened on the am not sure i hit every point but i certainly get both of the points that i want to make which is that in regard to the allegations that there was intentional concealment there are facts from which that could be inferred i suppose and they certainly done that but they're saying it's true does not make it true certainly there i be determined that there was not and i suggest it's much more likely that there was not intentional concealment five different words and the question here is whether the trial court accused its discretion in finding  in failing to find that there was any intentional concealment and i think it's very clear that they did not that being the case the only thing we would have left if it's left is the question of whether there's misconduct i did i would point out and i didn't point out that in regard to the caliber of case the question of the destruction of the tapes became one of spoliation because there the case the tapes were destroyed while there was ongoing three for misconduct we believe we do believe the record shows fraud but we're not saying that unless it's fraud we are we fail to meet our burden on the contrary things we have regarding the evidence of misconduct the two ninety eight  have the same material but the record shows it didn't it had additional completely different copyrighted material they were allowed not to produce to us by presenting a declaration but the person who created them saying under oath they had no lynch material the person who created them said that and they did have this material as was only incidentally discovered through discovery in the caliper case and mr lynch is still not really had a chance to see those particular tapes to determine how much of this material they have because they're under seal and he's not been allowed to look at them so it is it's