good morning aren't me please the court my name is jim armstrong i represent the opponents in this case in andy's there are a number of issues raised in the briefs in this case as well as the other five that have been consolidated with it most of which you've taken under submission but i want to emphasize is one issue in this case which i believe is dispositive putting aside the issues involving rule fifty nine whether the court abused its discretion in denying that relieve the issues associated with the for lack of a better term unprecedented rule thirty b six pleading by deposition procedure that the district court implement and then in this case at the at the scheduling conference putting those issues aside looking at the evidence that was actually presented by p c t in opposition to the summary judgment motion and this was all uncon primarily the direct declaration of p c t s founder stephen u t but then later supplemented by the vice president brandon wilson this was a business relationship that lasted fifteen years connectors that are sold all over the world our client had an advantage in its intellectual property and its confidential information information in manufacturing these products that gave it  advantage easy con the the apple e obviously knew that both parties agreed from the very beginning of their relationship that it was important if they were going to collaborate with these economies the manufacture and p c t mandy's as the designer of these products that it was critical it was crucial that the confidential information exchange between the parties to develop these products and sell them and that included financial information as well as technical pricing information delivery information customer information it was absolutely crucial that that information remain confidential and that both parties maintain that confidentiality that evidence was undisputed in particular the declaration a detailed declaration given by mr you'd see as an exhibit in opposition to the summary judgment motion the district court looked at that information looked at mr declaration in particular and said this is insufficient no explanation given why it was in severe and that violates a basic precept of summary judgment practice found founded on the cell attacks decision founded on the other th circuit cases that we have cited it is not the role of the discrete court to determine the weight or credibility of evidence presented in the summary judgment context it is not up to the district court to determine that a declaration may be self serving that is a question for the jury the other crucial piece and there was there was other there was other evidence as well but the other crucial piece is the fact that these declarations this testimony discussed the exchange of confidential documents between both parties that they marked confidential both easy con both p c t easy con throughout all of these all of the motion papers and there were lots of them in the trial court threw out all of those motion papers never denied that they had any obligation to not maintain confidentiality they never explained why they would mark documents confidential if there was no overall understanding that this information was in fact confidential they never explained why and due to the discovery freeze the disruption that was caused by the rule thirty six pleading procedure implemented by the district court we were never permitted to ask them a single question about that we didn't oppose a single witness we had proposed in our join discovery plan six witnesses plus two hundred and thirty six witnesses never got to take a single one of those depositions never got to ask any questions in this case before summary judgment was was entered and and of tasks that judge weight the district court had established needed to be accomplished by the time of the october scheduling conference there was a joint discovery plan there was an in disclosures that had to be exchanged there was initial discovery that had to be sent out in addition to that remember we're dealing with five other cases that are going on yes they're consolidating but they have their own issues we had dispositive motions in i think four out of those five cases also going on at the very same time i think easy con tried to characterize what we did as sitting on our hands throughout this period we certainly weren't doing that we had half a million dock documents that had to be reviewed so during the period preceding the i think it was three months preceding the scheduling conference that's what we were doing then the scheduling conference happens judge wake makes it very clear mr shaw for easy con raised questions during the scheduling conference about how he didn't understand our contract claims contract claims which incidentally were not a subject of the twelve b six motion didn't understand what our theory was and so judge wake very clearly says before we launch that's his word launch off on this expensive discovery requested by p c t i have an idea i'm going to allow mr shaw who has already noticed a thirty six deposition i'm going allow that to position to go forward st i'm going to narrow it to information concerning the subject matter of their complaint what are they pleading what is the what are the contours of their contract claim now did anybody at that scheduling conference suggest that a motion for more definite statement some other procedure might be used of there then thirty b six to investigate the status of the complaint i don't believe it was mentioned but you've read my mind your honor i was going to point that out if there actually was some issue or  misunderstanding of what the claim was that was certainly an available option and certainly something that would normally be done in this kind of case i know of no other case i mean we look for and i know of no other case where thirty six was substituted  as a well that's just case management and you may take issue with that and i'm it's a little unusual but i think the more important question is from for me is what were you seeking with the rule fifty six challenged on that basis we really wanted to pursue what we had in our joint discovery plan the six witnesses the two hundred and thirty six dollars witnesses including mr holland of holland industries which was central in how we discovered this this dispute to begin with so no there was absolutely in for me we never received a single document in discovery and what's important here under five thousand and sixty is well is that it's an particularly appropriate procedure to use when the information you are seeking is in the possession of the other party we let me just ask one other thing once the summary judgment motion was filed did was there any formal halt these proceedings so that we can conduct that discovery we didn't have the opportunity to do that let me just ask a different way was there anything between february two thousand and seventeen in the filing of the motion for summary judgment and the grant of it which i think was in september was there anything that precluded discovery there from february th yes discovery was not opened until july st there was no discovery allowed prior to that happened i'm talking about between the motion for summary judgment and the time it was granted ok the simple question was there anything that precluded discovery during that period it's a kind of a yes or no question pretty completely briefed and oh you're familiar with that's all start by asking the court whether you have any questions for me well you didn't respond to discovery correct that's not correct your honor in fact we did produce we produce what they asked for this sort of document question st time in november and we served documents in december or january i don't recall if saddam had what documents they were but they did contact me on february and with purported complaints about our production they wanted to have a call to talk about that they also wanted to talk about scheduling depositions which evidence is that they need discovery was open and if they were dissatisfied with our production or they were dissatisfied in fact one of the reasons why judge wake denied five thousand and sixty relief was he found that they were not diligent that they didn't invoke the court's dispute resolution procedures for discovery issues let me just go back to this issue about not having enough training for discovery nothing in the meantime on behalf of my clients i did all of those things and point out some of this which counsel the docs to any firm appear to believe late august we had a scheduling conference before the court in october and i said they haven't done in discovery judge they've been sitting on their hands for four months apparently they don't want any discovery the judge talked about a procedure about allowing me to go forward with a thirty six deposition thinking of that wooden arrow the issues in the case the court issued an order the next day after that conference didn't say anything about discovery being closed didn't say anything about a discovery freeze in fact the court expected the parties to continue with discovery which is what i did and what they did two weeks later on november th they served document requests on me they need discovery wasn't frozen or close they knew that they were supposed to be doing discovery they said on behalf of his economy served written responses we then served actual documents that were responsive they had an issue with that they thought to be production was deficient they contacted me in february and said hey where's the documents with you know you gave us some of this is not what we asked for let's have a call and we had a they contacted me about some depositions that's all they did if they were dissatisfied with what i was giving them they should have taken it up with the court should have filed a motion to compel i didn't do that judge way it was very clear that it was a lack of diligence that supported his denial of five thousand and sixty really i answered your question i want to go back to a point mr armstrong made about the the business relationship in the collaboration as he characterized it and what i think this leads to is a evolution of the theory of their case from what it was pled to what it's become on appeal in a completely different things with this case was pled was breached u c c purchase orders if you look at their st of many complaint that was the basis of their breach of contract claim that was the basis of their breach of implied covenant of good faith and fair dealing legit were purchase orders that they sent to my client my client fulfilled that was the theory of their case that the purchase orders had terms and conditions you know fine print terms and conditions that we breached that was the theory of their case as it evolved in discovery and as we shoot showed in our summary judgment papers they couldn't prove that they had no evidence of that they couldn't prove st of all the never produced any of these purchase orders and discovery there's a single purchase or the a large part of the relationship they had a purchase order that did not even include the terms and conditions and that became a problem for them so what did they do they switched their entire theory and said well never mind the purchase order theory never mind the fact that we can't prove them up t the fact that we can't prove you have agreed to these terms and conditions now we're saying this is the overarching oral agreement that just cover the fifteen years of some bella confidentiality obligation that we had to them so that anything they gave us in the course of fifteen years was somehow confidential that became their theory that was not pled in the st i'm in a complaint it was not disclosed and skiver it was not but in their joint discovery plan the parties filed with the court and so we rightly understood that it was not part of the case wasn't part of the case and they knew it wasn't part of the case either because they tried to add it to their nd medical plan they sought leave to file a nd minute complaint which added this new theory they knew it wasn't in the original complaint even judge wake when he denied their motion for leave the father nd man a complaint he noted there's this new theory you're adding these new facts adding this new breach of contract theory and it's denied your motion's denied and the judge said adding that new theory this late stage of the case was prejudicial that you are under legal aid and so and that was an abuse of discretion that's reviewed for  brief we reasonably understood at this oral argument theory was out of the case that's what the judge told us it's out of the case in fact we noted that in our summary judgment required judge there presenting this new theory but you've already ruled it's out of the case and here we are factual record is sufficiently developed and what i mean by that is their own witness according to their own witness the obligation was that information was always confidential everything they gave us was always confidential well that's a perpetual permanent obligation in the regency case that we started their brief in the courts and western chance of decision say you've got an oral obligation that's perpetual and permanent that's covered by the statute of frauds and i think that's exactly what we have here we don't need further discovery on that their own witness mr wilson testimony cited in our own brief one very important factor judge weight made it very clear when he instituted this thirty the six pleading procedure that testimony the facts reveal in that procedure became part of our complaint so the oral the overarching oral agreement that governed since the beginning since one thousand nine hundred and six all the way through the era of the purchase orders was place was in our complaint it's not something that's a new that's been invented on appeal it was an invented later on in the case it's by judge wakes order that mr wilson testimony as mr greer mr shot just just admitted concerning the oral overarching confidentiality agreement was part of our pleadings unless the court has any