broad discretion that case here we have a prevailing party below who after the fact more than presented a witness who admittedly there is no dispute about this committed perjury he lied about his qualifications he lied about what he did to form his opinions he lied about who did the test which concealed the results and based on that are entitled to a new trial more than that there was a failure in this case produce he testified the only person who testified only on the coping is don't sort of give away something that seems important here well i was going to get there your honor but you probably ought to get there in response to questions that very directly what he testified to how effective thank you for the help your honor he castigated dr b he said that if i had been asked to tell her what he did on the code right he said if i'd been asked to peer review what he did i would have said no he called him a liar  called him incompetent that clearly played into the decision of the trial judge to strike back to be nice testimony on the soft issue he was a great way to where were the trial judge rely on that i stands out among circuits with regard to expert testimony morris federal practice says that the eleventh circuit assumes that there is complicity when expert testimony is presented they base that on hair they base direct they and they help form the opinions and then they present them in court i think in the eleventh circuit there is an assumption that there is perjury to the eclipse my third offense i know this is well i'm sorry there's complicity yes question is whether we were deprived of a full and fair opportunity to present our case because of dr polaski s perjury and i think the mistake that judge corrigan made was he saw this is a subtraction problem he said ok johnson and johnson have a perjurious witness if we take his testimony out of the trial no change in result because of the short of the because of the shorty and because of all the other evidence and everything and that's a and that the verdict was thwarted by that evidence and he found that only by looking at the box of evidence that is the trial you yourself on the first appeal here said that if dr beebe had been forthright  in testifying and that had been disclosed before hand must have been taking into account the perjury when he said that the opinion that he's dealing with your honor it is my point in referring to dr v b and referring my point is this though you're now looking at the trial it's the same error the judge for argument discovery things that are produced good disclosed in discovery inevitably impact the preparation for trial would have had a shot at summary judgment which is why the judge with all due respect and you know the trial judges try to protect the judgments that their courts render and they should it should be hard on the other hand she invited the reader of his order to go back and read the transcript of the three hour hearing on this and i think it's very illuminating he started off by saying you know when i first heard about this proofread he described it as sour grapes and cocktail chatter and so he denied discovery and later on he said you know in retrospect that was probably ill advised but certainly was then when he got let let let let let us not come down to district court to sink that were likelier to expect their lawyers to a saw to that but even when he was pretty judge corrigan was presented with an contradicted in the now admitted evidence of actual perjury you still wouldn't want us attorney client privilege or the work product privilege you've got to show crime fraud right i didn't see didn't make that showing i didn't see any where you even allege that you don't just get to pierce the privilege or the work product privilege without first of all into one of the exception in order to get work product out of the attorney i don't believe so but if we did that you think the standard is just so that was the work product standard the rule the rule says work product is not subject to discovery unless there is a showing  substantial need and an inability to obtain it without undue hardship i'm going to you know we're not talking about communications with clients you know we have we have a situation where there are twenty three e mails between dr blouse key and all the people at the lab that actually knew what they were doing in the two or three days before dr blows his deposition it's a fear inquiry based on those facts that we've been able to drag out of the case but not that i'm one of those e mails none of that information and that's all quite damning a philosophy there's no doubt about that not one of them implicates anything about the attorneys not one of them suggests any complicity at all and under those standards it's hard for me to conclude the district court abused his discretion when not upholding what i think of as one of the sec restraint in most important types of privilege that exists which is attorney client plus for proper generative probably would change your mind if we were able to produce evidence that at one o'clock on a specific day two days before he gave his deposition dr polaski sent an e mail to dr doyle can saying how do you do this again and at the same time we find out he's meeting with the johnson and johnson where you know it probably wouldn't change my mind actually your honor if he's meeting with the lawyer and he has to take a break to go ask how to do something that would be powerful evidence i believe that they should have now but we get back to the question of if in the eleventh circuit you have an expert witness who perjured himself there is an assumption according to way more research case and i think of  on this record could have found that the shorter the hardness limitation would satisfy it could have your honor if we go back to trial there's no no no that's not my question on this record seventeen to nineteen of the reply brief that was admitted into evidence it was in the case was that it made it into evidence not all of it i'm talking about the record that was made here but i hope that the jury mr banks thank you very much system it wound up ruining his career it was highly embarrassing us because the district court to give great attention and seriousness of this motion which you very carefully considered throwing the hearing in many submissions in the end he found that the false testimony had to be balanced against the interest in finale the jury's verdict and just results right over the trial he was not surprised by the outcome which he followed very closely and he found that the trial was a fair trial although not a perfect trial how can you to this analogy of the jury's verdict when your primary expert on the surface later in the tape limitation the one who did all of the testing well we now discovered salt perjury i mean you know it is it has to be thrown out so how can you defer to the jury verdict that was already in your trial transcript that was your primary defense at trial on infringement the jury found no infringement so how do we how do we say that verdict wasn't tainted by that evidence  the head of clinical research we off all offered extensive first hand information about the development of the product and there was a modulus clear through this plant had the optical clarity been made it number one in the market they were all extremely knowledgeable about what they were talking about then we put on three experts one of whom was doctors stepan who criticize dr devi one of whom was dr paul critici verdict of course that's correct but the district judge found that the principal impact allowed his testimony would have been to exclude allow ski or to cross examine him i think the reality is witness on the short hardness limitations and he collapsed right to correct them and it's counted for about five percent of the court trial time was a very small part because we didn't put on any evidence on shore day after his claps and the answer to the impact of when this ruling was none the judge says it a five three nine eight when you announce ing the ruling is announced in the court's ruling it was a ruling the court was prepared to make after the original argument clear and convincing evidence that somehow polanski's false testimony interfered with their ability fully in fairly to present the soft limitation i think respectfully that all they have is speculation that well short the if you look at the thirty six cases the sixty three cases i'm sorry if you look at sixty three cases they grant new trials only one issues that are tainted so if you look for example discourse decision in this right so if you go to something like the seventh circuit decision in sarkozy's party there's a jamie judgment as a matter of law just like there was here there was a sixty three motion based on new evidence the court found  different things so what is it that this district court judge said if anything on its record anywhere in this record about what he might have done differently regarding the exclusion of dr beattie in light of all of this information  anything that we have your original question i'm sorry is what if anything do we have on what he would have done is the b b is there any reason to think that he would or would not have done the same thing with regard to me had he known about but not one in footnote nine he says that he's saying they had a phone fair opportunity to try their case on the surface layer and denies them relief even without considering the change a b c was entitled to judgment as a matter of law i don't see a bit of hesitation there i don't understand what is how is it what do you think i should interpret about that i'm saying that in this opinion district judge repeats that we were entitled to judgment as a matter of law i don't see that without considering whether you are entitled to judgment as a matter of law that's enough to say he doesn't say you are entitled to it he says this is true even without considering that issue you i guess my problem with that is or my query is that i don't think i'm not sure i would have gotten to the place i sure i may not affect into that different place i may have done something different and something different may have happened if i had known at the time dr milt you know it now that i thought it through i would not have done anything different i would have excluded part of the problem i would read it differently i would read footnote nine of saying what i've been arguing it says and footnote ten on the next page a sixteen sit wait for him to say well i sure as heck would have taken remedial action doesn't mean that that remedial action may not have resulted in allowing dr v b i mean that the part of part of my problem of hunger if you'd allow dr b b in his discretion because he found that it was really unfair to you that you all didn't have the information persist we had dr b b did the test beforehand but you know what it seems a lot less unfair when it's discovered that nobody had the information on how your expert at his testing until never after the trial basically you can see that you know when your co kind of comparing is the lesser of two evils i'm sure that i'm not saying there's no evil present something the lesser of two evils and maybe under that d i'm not sure that i see that the district court adopted that already and i think what judge moore is talking about is that we have some sort of a comments about the summary judgment and exclusion of the evidence in this transcript but when he gets to the final decision here he doesn't come right out and say well we don't have to worry about this because i still would have granted it jane wall i would exclude the evidence and i would have granted jane mall on the short the hardness limitation and the question is how do we know that he really addressed and resolved a quick well he certainly didn't say it in hot service agree with you on that however as i read what he did as he recognised that argument had force he said that and then he wanted because he's an extremely conscientious hard working district judge he wanted to get to the to get to analyze and in detail the effect of this alleged of this in fact misconduct on the trial and so he turned to the surface layer and the bulk of his opinion is addressed to the surface layer where he finds no complicity of counsel where he finds they had a full and fair opportunity to litigate the surface layer all and therefore he denies promotion well even without considering on it should say why you know i'm not sure that i then he explains why he thinks that and he says that's concluding he concludes that even without considering there was an fail to judgment as a matter of walk and on the surface on the sauce limitation i read this entire discussion as a discussion o because of the perjury then we have to send it back to have him address this other question i don't think you do and i think you have to find that he made it abuse of discretion that he made a clear error of law that he won and won multiple grounds and we won because there was no complicity because there was no misconduct of the party and they made no showing of that we won because we had a full and fair opportunity to litigate the case and i believe we won and should win because the software imitation precludes further further analysis of the question they didn't win their opening brief in page twenty five of our reply brief we didn't talk about the discovery misconduct number of alaska's a guy who'd never tested contact lenses before they sent known infringing contact lenses say test these with your method to validate it they never produced the data from that which in fact show the nics profile exactly like their ones that's misconduct that that doesn't require complicity but let me just say that counsel has done a good job here as he did before focusing on the tripe roge or hair this court's prior decision all recognize that if you have fraud that comes into the  at the discovery stage it shapes the decisions that everyone makes going for and that being the case that's the deprivation of the full and fair opportunity to try the case it is as we discussed maybe we would have moved for summary judgment we would have changed our strategy maybe the focus would have been different we clearly meant that standard and judge corgan didn't talk