for your start i just want to talk about a matter of housekeeping design where you're standing your divided here thirty minutes into ten minutes of peace that's correct from my experience is that never really works very well so i hope that the  to work something out amongst yourselves we want you to each have an opportunity to present your case correctly but i want you to know that we're not just going to keep going and going and going and going so i hope you will be thoughtful of one another recognize that others want to make can or simply no clear and convincing evidence here to demonstrate the good you're acted in subject to bad faith necessary to support the imposition of inherent authority sanctions i mean just stop you right there last night i really read  judge silver's documentation i don't think i've ever seen a more thorough recitation of facts in a contempt that you ation than what she did she elise speaking for myself i respectfully suggest that if your argument is sufficient see of the evidence you're not going to get very far with me there may be some legal points that you may want to make a great deal of impact on  such as the ability to force a good post something in every case that it is right in the future based on the contemporary you argue your case the way you sure but i just don't know i appreciate that you're not going to get very far with me with the so specific as i can of the case of an argument that i don't think has been quite covered by your client ok your client continues to say well where's the evidence where's the written evidence but you had an in house counsel who was responsible on behalf of goodyear to check all of these documents now there's no record that people use telephones all the time and the district judge said that there are that that that there's sufficient corroborative evidence to show that this person who was in house counsel was checking in there for good was involved and then you have the evidence of certain employees now so there is some evidence now why isn't that enough sure so let me try to respond to the couple threads there i think there are some legal issues i'll get to those but in response to your specific question what was  olson the expert who testified he was clearly under good years employment yes well i have to disagree with you your honor and i know i know that's what you said but i just have to point this out if you look at the testimony the judge silver relies on to say that he lied she never address is what he came back and said in his second deposition where he says i thought we were just talking up a high speed test so to say that the witness lied and then not to look at the witness is unclear for cation of that testimony second deposition is problematic but this is the very thing that happened all along isn't it counsel you the plaintiff's the very early point was established that your folks knew collectively that they were talking about heat on these particular vehicles with these particular tires and they're after everybody pretended you didn't know what the cause of action was what the issue was and so there was confusion and they were asking for too much it was it was a pattern so what you're telling me is that with respect to mr olson the same thing is going to fly the first time he says well gee i don't know i know what you're talking about and then the second time it's something else but it had the effect of further delaying further complicating further muddying the waters right at least that right well i respectfully disagree with you on the olson point and the other point that she makes on olson is that he knew of the heat rise test at the time of his deposition and she points to a document i think this is where you can look behind her factual findings she points to a document it's a the are twelve forty three and says this shows that she knew of the heat rise test it doesn't mention that test at all your honor and that is yes judge silver made extensive findings but if you look behind them another example is ms okey the in house counsel she says she lies when she says that the woods court ordered the production of all tests or you know what the plaintiffs in their statement of facts said the exact same thing almost verbatim and your honor that was at eleven twenty one of the e r so i don't understand how o'keefe saying something in an affidavit which parallels almost verbatim what the plaintiffs say in their statement of facts can be some perversion of justice or an attempt to mislead the court and that's the kind of things and she has to go reach those actions because otherwise it's the conflation of attorney and client for purposes of holding good you're liable here because you know it could you go back to my question yes i mean my question was i believe the district court could find that was sufficient evidence that the end house counsel mizzle had the responsibility of checking all of these documents before they went out and and i have read i have read the record and i think could be difficult to say that she could not make that based upon the circumstantial evidence can she make that determination that there was i know we don't have any materials  faxes and the rest of this but wasn't that her responsibility well your honor this is where i think i'd also have to disagree of course she would tell me why well exactly because in health council is entitle to rely on outside counsel that's why you hire lawyers and i cannot tell you well one i said the supreme court said a little differently on that but i'm not saying that she can't rely on them what i'm saying is her duty was to check on them and the evidence is sufficient i think and you timely way i'm wrong that before these documents went out they went over her test for approval is that correct or incorrect the discovery responses were given the written discovery response to the doctor requests were given to her for her review before they were sent out the documents themselves were not and i just have to say your honour's i mean in every case i've worked on where there has been discovery i don't think i've had a single client say ok i want to look at every single document this team produced here and that's why people hire outside lawyers and the burden i mean if you're going to impose a burden on the client to have to review every single document i wish we could rely on research what your experience has been but we can't we couldn't can't believe in my experience either i was a trial lawyer but what we have to do rely on is whether the district court had sufficient circumstantial evidence that she did more than just tossed papers back and forth that she made decisions on behalf of goodyear if so then she is good year for that purpose but it's not simply sufficient evidence it has to be clear and convincing evidence i think that that's significant here  and the only evidence on the record that with respect to his okie is that she was not aware of the heat rise test until i believe it's two thousand and ten so she was not specifically given this document i mean yes the good your engineers gathered these documents and transmitted them to counsel works but she wasn't asked to she didn't see every single back in the came through who was from your hot side council there was materials coming back which are in the record in which he makes a proposal as to how they handle things and then he he asks for her thoughts your thoughts he's asking for an opinion of the in house counsel right i think yes it sounds like that honor and doesn't that make her more than just a person who's passing papers back and forth so i'm not suggesting she's just a you know a potted plant in the process i mean certainly she is a lawyer and has duties like any lawyer  the limited time available i want to start by saying what's at stake in this case for my client is his career is a lawyer and his previously unblemished record as a competent careful i think a lawyer in the limited time i want to focus on two issues first can these sanctions be upheld in view of the fact that the district court failed to and disregarded the structure in place for resolving discovery disputes the district court only failed to follow rules twenty six thirty four and thirty seven we know that there was no motion to compel we know there was no meeting confer we know there was no hearing on a motion to compel and most important there was no order issued by the district court giving the defendants any notice that certain documents were supposed to be produced all with respect correct me if i'm wrong but my understanding is this case was settled the judge silver thot there was no problem she consistently denied the plaintiff's motions of various kinds get more information it was stone wall only after this case was settled and there was evidence i think in newspapers or whatever to the plaintiff come forward seeking to do something quite different this is not the typical you know a bag of beans case where you've got an ongoing piece the litigation this one was done it was simply evidence that was being brought forward to show found that there was deceit into place of the on the part of your client and others and there was a lengthy hearing about the whole thing and they certainly had noticed that there was certainly discussion about the amount of attorney fees etc etc so i don't not sure it's going to be helpful to talk about the rules you're talking about which are really basically going to be factored into an ongoing trial your honor the fact of the matter is that this defendant and this counsel produced the documents which are at the heart of judge silver's order in other cases when in fact there was a motion to compel me if the plaintiff one of these documents or felt that lawyer repeatedly told the court at least according to the documents that everything had been produced everything was wonderful so again did this is soft astri as far as i'm concerned well th desire to cooperate at all your client needed was somebody that they like which give us the test that's not what happened according to what judge silver's records well regrettably judge silver his record is is not quite accurate in our view because plaintiff's counsel at status conferences indicated it had the documents it needed and in point of fact had never said what it documents that made any reference to heat as such and in point of fact the defendants this is this is significant judge said this is part of a conspiracy on the part of good year to withhold these documents and in fact they produced them in other cases without difficulty i want to make one other point that's very central to this before this is made that point i don't quite understand your your focus upon whether or not a motion to compel was brought i read that in your brief and i've heard it here is there some way that the that your client is home free because they didn't bring a motion to compel i don't get the connection i'm sorry your honor in the brief and in your comments today you continue to refer back to that the plaintiff did not bring a motion to compel is there some law that i hove or look that that makes you that your client is free if they didn't bring a motion to compel my client did what careful lawyers do i did try to stand your argument there but tell me is are a case that says that they have to bring a motion to compel or they can't go beyond that point to attack your client's action but there's a case in this circuit your honor in aruba in the cited in our brief which makes it clear that you can't impose sanctions draconian sanctions of this kind without giving the affected parties some warning and face you know that i am due process if you do that yet i'm i understand in my my colleagues at it that there has been hearings in the rest that there is due process my point my question is very simple do you have a case that says unless the plaintiff brings a motion to compel the plaintiff may not further attack the process in this case the play i didn't hear the last part i'm sorry is there is there a case that you have that says that the plaintiff must bring a motion to compel or he cannot continue the this case that is you've mentioned the motion to compel well i'm not sure i understand the question but what but the law is clear that the suggestion that the sanction proceeding after the case was over somehow afforded my client due process and enabled him to avoid the sanctions that were imposed quite frankly ignores law in this circuit and other circuits that says for you impose sanctions you've got to give somebody a chance to produce produce the documents or direct them needed it's the one that determines whether this production has been sufficient not the defendant agreed you agree that if the evidence shows that the plaintive did all that it needed to do to ask for the documents in  question then your client has had the due process necessary to put himself in sanctions way i think that no you're right or because i think this is the way the process works i've been involved in hundreds of cases where i'm representing a client about what the judge found here but not what we find she said that as of the time i think it was of the first set of iraq authorities that it was clear that there was a concern about heat that it was clear what was being perspective she think she has documented that everything that was needed to require your clients to produce those tests about the heat was established at that point what are we to look at other than what her your her record that what do you have in the record that will show that the judge dollar didn't have very convincing evidence but simply had no evidence that you know what was well first of all we we evaluate requests based upon what the plaintiffs says it's theory of liability is and the theory of liability articulated in the plaintiff's expert's report which was issued in december of two thousand and six indicated that heat wasn't a factor load and speed was and your ability at highway speeds was and so my client did what careful lawyers do he produces documents that he and i've done this many times in fifty four years of practice i look at the plaintiff's theory of liability i produce documents that i believe are responsive to that theory of liability and if the plaintiff thinks that that production is insufficient then the plaintiff asked me for more and they do again and again and again in  lying over a long period of time i'd like you to be able to tell me the difference between chapman and miller when we talk again i'll save my time again thank you let's hear from mr jacobs i guess right yes your honor good morning and i'm going to try to reserve three minutes if i the circuit has been reported decisions sustained general objections to the production of things as overbroad when those objections are challenged plaintiff's lawyer said in december twenty in a writing i'm going to challenge those with the court and he never did that now what mr hancock thought and he memorialized in december five two thousand and six was that the broad request for quote all tests which i think most lawyers would say is overbroad was then going to be refocused and mr kurtz properly refocused it and he later served a request for high speed test s one of the four enumerated subtypes so the proper function of rule thirty four is you get to make objections they can be challenged mr kurtz did not challenge it he propounded a request for high speed and absent an order under rule thirty seven that that mr hancock or his client violated the law of rule thirty seven as set forth in circuit cases in our brief is that you're not supposed to be sanctioned so the question becomes whether you leap over that and use inherent authority and that's a really extraordinary thing to do because this circuit has taught gman that you're supposed to address discovery management during the case and not after the case with enormous after the fact sanctions let me ask you this counsel if i recall overs analysis correctly twenty two months there it was twenty two months there after that he first corrected what he had previously told the court and she was relying on that what's your comment about that is there anything in the case law that says yes you cannot do that honor because the heat rise test wasn't high speed suitability test and this is six months after discovery mr hancock gets the june fifth two thousand and eight e mail six months after it's closed and the e mail from mr musgrave mentions that this test exists and has been produced like mr harrison said in other cases so what does hancock do he checks over and over again with coordinating council and everyone at goodyear the engineers the lawyers mr musgrave they all say all of goodyear says that this test was not used for speed suitability and that's what judge silver held and said in may two thousand and seven it's in her order that's what the tests are supposed to be the speed suitability tests if everyone a good year says this isn't one and it's not proper in the law to sanction in this fast way mr hancock when he does the diligence rule twenty six g says is a safe harbor and your honor if i may in august in august two thousand and two two thousand and six hearing transcript mr kurtz correctly notes that if mr hancock is making proper inquiries that the right people are looking at these things that's the safe harbor and that's our arguments rule twenty six mr hancock is local counsel was diligent and the law of bad faith especially considering the draconian nature of the sanction i think requires a searching and careful examination of these evidentiary bases so again there is no case permitting judge silver when discovery is over for six months something that's not responsive to her orally stated description on may seventeenth two thousand and seven speed suitability test this was not it but again this case is like yeah given but more i mean in yangon this court taught us that the discovery issues are supposed to be resolved in the middle of the case and chambers and yet been stitched together very well they emphasize the important value of turning this court wants to teach and lead and deter misconduct and you do that during the case some of the things judge silver says are false she says that well it was false when you made me feel like all the documents were produced before me two thousand and seven but then in may two thousand and seven why would there be a narrow request for high speed if all the tests have been pretty specific sense counsel the third requests for production of documents wasn't just limited to speed it also involved in durance tests and so why why weren't the tests that your client became aware of in june of zero eight why don't they fall into the durance category the two thousand and eight tests the high speed tests and the what they call the additional tests in the briefing your honor those tests were tests that were performed for different purposes by engineers a good year and mr hancock at that point basically needs to rely on the advice of mr must have been through mr musson of the scientists like strobel and taylor at goodyear and what do they use these things for so good you're may have used these as sort of general background understanding tests like the high speed test itself it wasn't destructive it wasn't to see when the tire blew up it was run to a certain level and then after it reached that equilibrium level the test ended so mr hancock was not aware of more specifics about that i mean this one of the things about this case that of course is very different is that the case it's settled i forget how long it was afterwards that plaintive counsel approached the court i don't know any case quite like this frankly  yes so at the time of the precedents are a little strange but i'd be interested in your thoughts on this judge so over obviously felt that she personally the court had been misled she went back she looked at the record she she basically she she defeated almost everything in the plane if it asked for and discovery relying heavily upon goodyear and  counsel you had a great case going for you but then she felt based upon the fact that you did for use these other documents in other cases that she had been deceived that's really what we're really dealing with here is that she feels like she was sold a bill of goods what i'm struggling with frankly is i mean i recognize that that your client and some of these other lawyers are very distinguished people who have very fine careers on the other hand we basically have an epidemic in many cases where the big guys are just beating up the little guys by sophos tree and i don't know whether this is one of them but i'm i'm really troubled by what happened here and i i would be very answered in your view as to what we do with the fact that the case itself does that make any difference in our legal analysis as to how we treat these sanctions you have placed your finger judge smith on why this case is unprecedented and why you would be making significant new law if you affirm it ok all these sanctions cases say that well you know the inher authority even though you seldom exercise it you carefully exercise it you do so in a compensatory way and everybody seems to grant that if you do it in a punitive way there are always procedure procedures and proceedings that didn't happen just the nine hundred twenty seven approach oh it's the inhere twenty six ten it's a pretty big settlement and so the plaintiffs city are five sixty seven they said you know we think you messed up discovery you didn't disclose things you were obstreperous they said all that stuff the question isn't formal waiver the point is the court knew they had this really large settlement and then lets them go back and double dip and have a proceeding based upon restarting from scratch and having a second go at the thing and that duplication makes it inherently punitive and nine compensatory there's no way with that size a settlement and this size a sanction that that the additional tests in response to the third request for production of documents what's the causation principle that you would have us adopt that would allow the court to impose some form of sanctions but not the entire entirety of the plaintiff's attorneys fees is to be narrowly tailored i mean this is the thing that in that case the fifth circuit case in one thousand nine hundred eight you have to be extremely careful in exercising this fast and unfounded powerful inherent authority to articulate the principle that you want the court to adopt yes judge i think that it needs to be a causation that is proven by clear and convincing evidence to be the but for cause of particular attorneys fees that emerge from that it can't be some sort of yeah going like everything in the case was bad and that's what this is no matter what one thinks of what's here this is yeah go and plus well  i mean i have that's the question i put to you is the one i've struggled with because i tend to agree with you that the the severity of the sanction seems to go beyond the misconduct that is revealed by the record but i don't i understand we're judged this is the bothersome part and i understand the position your client was and i have i've been there but the part that's bothersome was the district court ask  your mr hancock if there was any internal documentation that is available that has been requested that goodyear has not provided close quote and then your client answers we on she points out the district judge points out that the statement that had just recently been requested additional test was misleading because it implied that it implied that   had he had only just that hager it just only recently requested those were a mistake those were true or those were deceptive which if i may take the second part first please your honor as to the statement they were recently requested that is simply true and not misleading because they had had a negotiation for days these gentleman and the further request was narrow and that was the request that was made and since there was an objection to the overbroad request i think it is not deceptive or poorly taken for mr hancock to say that and there is no deception worked on the tribunal because he says it next to mr kurtz who gives his somewhat contrary view no deception on the second part you know that that has to do with people's minds of whether there's been a limitation she she has some problems with that i guess but go to the first one then yes yes your honor and i think that's the more important one and when you look at the first point it's revisited in the e r at two forty nine in two fifty and that's where judge silver is conducting as she often did in the hearing direct examination of the lawyers and she's examining mr hancock and she says i look back at said to me that you responded not that there were no documents i'm not saying it's perfect i'm not going to stand here and say to you in this conversation we're having that that's perfect what i'm saying is you don't end a man's career over that a lawyer is trying to preserve privilege he's trying to say something honest we responded under rule thirty four that's what our response is it's in the rule and at the same time he's saying something truthful and trying not to waive the privilege which was secured previously so that i understand the question and the concern judge wallace i think that the rest of those transcripts you look at on the january in the october don't in any way show anything that can be argued to be deception on his part and i think the totality therefore is lacking ok i will give you please the court my name is john egbert i represent the apple e's the hagar's in the these consolidated appeals i think it would be hard to imagine a busy  spending more time and more effort in considering and carefully deciding a discovery sanction issue this case the sanction proceedings for this case spanned a period of over two years from the time that the motion was first filed to the time that judge silver ultimately made her decision about how much the fees were going to be and against whom during that process there were thirteen briefs or memoranda filed by this side of the room five of them by good year for by each of the two groups of attorneys there was an evidentiary hearing at which she gave them an opportunity to present their witnesses and their side of the story following that evidentiary hearing she allowed additional discovery to address some of the issues that were raised sometimes for the first time in this evidence you're hearing and it seems like each time each at each level of the process there were additional indicia of bad faith because of misrepresentations new theories new arguments that hadn't been asserted before ultimately she issued a sixty six page order detailing the analysis of all of it and the analysis wasn't just there was bad faith the analysis went through each step each finding a fact like a brick after brick building a foundation of bricks that have to be accepted by this court with great deference unless clearly erroneous let me ask you this counsel and i wrong in thinking that what this really boils down to is that there were some additional tests that they simply failed to turn over that's the long in the short of no your honor there's much much more than that that may have been the emphasis to the beginning point and it may have been where it all started going bad but but when you have an evidentiary hearing if you look at about just go back in time forget about the evidence you're hearing for now go back in time when the case of being but again the problem that arose during the litigation was that these additional tests existed that they knew about and that your clients should have received right that's correct that's the largest order that that's i just want to make sure you're not saying that that's the only example of bad faith that judge silver found in that the record s else there is peripheral bad faith that's connected to that but at the core that's the that's the evil that occurred here in your view or is there something more that's all i want to know i would agree at the core your honor but i just don't want to give up the other things because i think those are important because it shows the intent and the mindset at that core well ok but let me just return to the question i posed to one of your opponents i guess assume that we are with you on that there was some bad faith come misconduct  here i guess i'm having a hard time under our causations standard connecting the the core failure to turn over some reports with therefore you get all of the fees that the plaintiffs in theory incurred for i don't know what the period was several years yes your honor into the to the tune of millions of dollars not just seems i have a hard time see how those two fit together so i'd like to hear what you have to say i'd be happy to to address that because this really goes to that i think somebody in a in another question compared this case to the situation where there was one instance where a document wasn't disclosed and there's a fight over that and it was found to be bad faith and then you get maybe whatever your cost of your filing the motion to compel and that's it and that makes sense in that context again in an ongoing litigation but here what happened here your honor was that because of the this case was deprived of the very essence the very heart of what drove this case was concealed intentionally over the whole period of time it was kept so the what ended up happening was that this litigation for five years was a charade it was meaningless the whole thing was was an empty endeavor and that's what judge silver concluded that because of this it was it was like a let's just do a law school hypothetical fictional exercise that's what occurred here because the heart of what needed to be disclose was not disclosed it seems to me that there's a little more to it than that and maybe this is part of my defense lawyer background but i have never felt in representing my client which was my responsibility not representing the court but my client that if the other side didn't ask me for evidence i was under no obligation unless the court enters in order to give up that evidence there's no fairness you know there's an adversarial system that we deal with now it seems to me that the problem i have with the case is that what point did the plaintiff's lawyer require that this evidence we found out about it because it was being properly requested in other cases and now she's seen what happened another case and she says why wasn't this before it was seems to me the question is is was it properly requested and that seems to me to be the turning point it was properly requested and they held it back i understand your case but the question is was it properly read requested it was your honor it was requested in multiple ways at different times the initial requests the first request was for all test records for the g one fifty nine tire this tire that was a vault in this accident including but not limited to road test we'll test high speed testing and durability testing these tests that were concealed fit within some of the multiple of those those clarifications those classifications so it was requested on the first occasion then it was also these first set that there was communication from i think mr hancock to mr most of them assure him pronouncing that correctly correct your honor as now detailing exactly what had been was requested and conversations have been had and that it was clear at least from her perspective that the all the test including the fire test were requested at that point in my correct about that the that is correct there was because if i understand it correctly she bases her calculation of damages as everything that flowed from that point on not before but from that point on because she felt that there was a complete charade that in fact the essence of what your client needed all the lead to settle the case probably got a whole lot more money and it had a lot less for the the sanction award and i think it's important that i finish judge wallace's answer because that goes that's the critical point not only were they requested in those two different requests but then in follow up you know they say that there was this alleged agreement they were just going to flat out which draw or at least narrow that first request which is by the way one of those excuses those rationalizations that showed up late in the sanction proceeding it was never mentioned when they first responded to the sanction motion nor was that i mean it was fourteen months into the process but they say that it was withdrawn well within fifteen days on december twentieth mr kurtz is writing  letter again saying you guys didn't give me any you gave me no test you gave you did nothing you gave me nothing that responsive to my liability theory where is it if you have it you have an obligation to give it to us that's in the record the december twentieth letter so he's once again asking for it then they go to a hearing on january first there were in front of judge silver and and there is a representation on i'm sorry january third two thousand seven we have produced all the data we had as of the date of the accident and that we now know that they hadn't even started looking for the test at that point time and then on an april six that's we already alluded to some of this says is there any internal documentation that was requested your cries clients haven't provided not only to the say we have responded to all outstanding discovery requests and by the time this is being said there is no third requests it's only the first request which supposedly they had said was going to be which wrong mr hancock doesn't say your honor we've responded but they've agreed to withdraw it we're not going to give many documents that we see their third requests that's not what was said he says we responded and you know if a document shows up we'll of course produce it so what's that saying to plaintiff's counsel that there are no documents and if they do find something they're going to produce it then we marched forward to me seventeenth judge silver again asking mr hancock mr hancock are there any tests that are available to show when this tire was tested for speeds above thirty miles per hour by the way high speed test thirty five miles per hour crown durable a t forty miles per hour these are the tests that are being concealed and she specifically asked are there any tests and he says well your honor that was requested of us just last week and by the way mr hancock then after a little while later in that conversation says your hon or we requested this a long time ago by the way that must mean the first request not the third request that had just been received the last week so again mr mr kurtz is saying i didn't withdraw or narrow those that first request and so let me ask you sorry you're already on your list of questions i want you're going to watch for a while i guess i would have thought put aside the statements you were just referencing at the hearing but let's say that you propound to me a document requests that's clearly overbroad you're asking for tests on you know a whole range of tires that aren't even at issue in the lawsuit and i meet your request with an objection it's overbroad i don't produce anything even though i have a response of documents i have documents that meet the description with respect to this particular tire but the problem is that your requests just ask for the everything under the sun so i don't produce anything i would have assumed that unless and until you bring a motion to compel i'm perfectly entitled just to sit on the documents i've got even though i know that they would be responsive to properly freema quest isn't that true i think i think there's two responses to that your honor the first one is that if that if your original objection again these blanket objections that are you know page after page i don't i don't agree that that's proper over breath objection was properly taken because your your client's initial request did not limit it to the particular tire that was issued right and then that was refined and so there was an agreement that way we're only talking about the size involved in this case so that that objection was addressed and refined and when was that was right soon after the objections were made there was a discussion between mr kurtz and and counsel about that and there was no or no disagreement that we weren't trying to get every size g one fifty nine so but but then the part of the problem is that if in fact as judge silver found that this was these objections were made in bad faith as an overall effort to conceal these documents not only in this case but in every g one fifty nine case that the if the if that's what the evidence shows the no those objections you can't stand by objections made in bad faith even if you otherwise you know could say well we're going to stand on these and wait for a motion to compel you have a case that says that the court is entitle to impose sanctions in that context even in the absence of a motion to compel yes the highs or bush case was a situation where this quite well the trial court had awarded sanctions for two reasons inherent authority  power and rule thirty seven and the courts analyzed it under rule under inherit this court analyze it under inherent power and said we're going to that's that was proper under and therefore we don't need to even get to whether all of the procedures under rule thirty seven the motion to compel and all of that was satisfied so that's an indication that if it's if you can satisfy the inherent power then that's ok you don't have to even when it's in th context of a motion or an objection to discovery you don't have to go that route but the difference is this this under rule thirty seven only requires negligence that's why there is this enhanced safeguards of saying you can have a motion to compel you've got to have an order that you have to have a violation of the order there's no finding a bad faith there there has to be a finding of bad faith here and we're happy to accept that there was bad faith here judge silver found clear and convincing evidence or what the level is but let's just for discussion purposes let's assume that there is clear and convincing evidence as she has put it down let's talk about some law because i'd really like them out when you've got first of all the judge is based upon both nine hundred twenty seven and inherent power the judge has imposed two point seven seven dollars of attorney fees and then a fall back position of two million and some change if there was a cause ation problem you've got is an unusual case again because this was a contingency fee case so a lot of it's quite novel you've got the case of chambers which is the u s supreme court case involving a lot of misconduct you've got the case of miller which involved a single instance misconduct what if anything do those two cases teach us about the inherent limitations of our application of the court's inherent power to one of the things that chambers teaches us to begin with is that the court very clearly stated that just because misconduct is covered by a particular statute or rule that doesn't mean that the court cannot use rely on its inherent power to sanction that conduct that's important here because this case is like chambers where there are so again to your point earlier judge that the core principle is that there was a refusal or concealment of critical documents there are other instances of misconduct that don't fall within rule thirty seven following this up  twenty seven seems to require causation i think our cases are pretty clear about that is that also requirement when the chords inherent powers are the basis of sanctions and if so on what do you rely  would rely on both chambers and miller have to give indications of a requirement that there be some connection there just otherwise i think your honor i think we would agree that you're then getting into simply a punit e you know situation that would require the higher look as asian in this case again i'm not saying she's right or wrong with the judge silver if you will i think was offended for the court she felt that she had been personally deceived cheated lied to by some otherwise very responsible members of the bar and a great american company she has to decide what to do she's really upset about it she spends an enormous amount of time detailing the wrong she believes occurred what limitation is there this can't can she impose let's go to the second one the goodyear has to file i guess a copy of the orders what if i read it correctly with every case involving this particular tire does she have that authority under inherent power well we believe so your honor but  we dollars that the case law is limited but there does seem to be some of the already out there the suggest that in the interests of not only compensating the victim here the hager family but also in the the judge is the one that came up with the the ruling your honor and it seems to fit within that that seems to be the case i guess what i'm struggling with is again just argue wendell that she's laid a convincing evidence basis for imposing sanctions it seems like this is almost on cabin and our case law and supreme court certainly makes it clear this is a very very careful about how the court imposes sanctions it's just not a club that you can just beat people with that your league gets to the level almost of criminal if you get too far and i'm struggling with the fact that we done with their case and so whether they have to goodyear has to go forward and continue to file in other cases is something that really doesn't matter all that much to my particular clients i'm otherwise torn because i'm concerned as an officer of the court i'm concerned about our judicial system and whether this type of behavior is going to continue to happen in other instances where does the money go by the way this this if it's paid two point seven million dollars who gets it that's that that's not in the record your honor  but if you'd like me to address that offer outside the record that that's money that belongs to my client then there's a contingent fee aspect to it it's in some court record related to this case is there correct th no your honor it's not it's not in the court record i don't believe that that that arrangement is part of the the record that's to me that's rather important i appreciative all parties want to see been twenty eight to help us a little bit on that because this deals i think in part with you know who is it who we benefiting is just going to the public taxpayers is it going to the state bars are going to help indigent defendants it's just a little sketchy in that regard  would say to that point that the the two point seven million dollar attorney for your ward was a judgment to my clients the hagar's for having you know gone through this empty exercise and so you think you think that the you think that the judgment is clear that it goes to your client yes that's my understanding i'm sorry i didn't understand your question about it maybe maybe maybe i didn't understand that and and and of course this was a contingency counsel can ask another causation related question so i mean if you're if your clients are going to get all of the fees just start post failure to comply with that first document production request right  doesn't that cause ation theory have to be very close to this in the causation theory have to be that had the documents had these additional tests been produced on that day basically a good year were just thrown in the talent settled no your honor that i think that was another way of looking at it the judge silver added to her order but this is kind of like the chambers case where the supreme court upheld i think the there the award was almost a billion dollars nine hundred something thousand dollars of fees because of how severe and years and all sorts of fees are generated just as a case is prepared for trout settles on the eve of trial so what's the notion that if these documents only been produced in a timely manner none of those fees would have been incurred well i think the i think the more accurate way of looking at it your honor is that if those if those documents had been provided on it's a timely way it would have been a real case it would not have been a charade so what does it ha to see that's my problem what connection does that have with all of the fees incurred in the entire case being awarded to your client there's no causal connection that's the unless you can articulate some principle that the guess is there i think that i think the principle is  the same principle as the court found in and affirmed in the chambers case and that is that when it goes so deep and just permeates every aspect of the litigation it basically undermines that undercuts and it's a it's a it's not worth going through that exercise there was no good purpose because it was so fundamentally flawed there for all of the time all of the effort all of the costs should be compensated for that's that's what that's what the majority opinion says it is that it was within the course discretion to vindicate itself not the lawyers not the parties itself and compensate nasco by requiring chambers to purpose was to vindicate the court so is there causation requirement under chambers under inherent authority well to that extent if if as the part of the portion that judge wallace just read  there is a causation only in terms of indicating the court in that effort if i understand the case correctly they're saying that the sanction is to vindicate the court you just have to have something some place to put the sanction which terry so they're giving it to the parties to cover their fees and whatever else but i i think that it's clear that under chambers the vindication is not of the parties the vindication is of the court that sanctions well i i i i don't disagree wade yeah it's not going to the issue of who gets the money the issue is why are we doing it and we're doing it to vindicate the court that's what chambers chambers is the case correct me if i'm wrong where the court the nature of the misconduct was such that none of the litigation would ever have a reason if the misconduct hadn't occurred and so there it does make sense to say every dime that was spent litigating this stupid dispute is isn't posable to sanction but that's why i'm saying this is already a lawsuit that your clients have brought they were in the middle of it when this misconduct arose and so i just don't understand how you say arbitrarily everything going forward from this point when these documents should've been turned over that's that's compensation for them and there's you know i'm saying that it's different from chambers and not it is distinct your honor i agree with you however i just i respectfully disagree that that there isn't some rationale it doesn't seem completely arbitrary to me that if you're going to so badly undercut and undermine that judicial process are my clients came in to have a trial on the facts on reality not on some made up form of reality and by doing that that's what they got that's all they got from their for their troubles and that's not right and whether it were vindicating the court or compensating my clients i think the result ends up being the same that all of those fees are it's was not an abuse of discretion for judge silver to award all those fees it's not arbitrary this particular case judge silver said that she was realigned both on one hundred twenty seven and inherent powers so yes go either way  could she have said i am so angry that i've been lied to and this trial has been made a mockery that i'm going to compel of these fees be paid to the state bar of i think we're treading on some new law here aren't we enjoined of by the supreme court to be cautious and careful in the use of the inherent power of the court yes your honor we this court is in judge silver was constrained but i think judge silver was cautious and very careful and gave the other side every opportunity to address the mirror from your perspective a due process is not even close to being an issue here i can't imagine more process being to your honor  in conclusion i would just say i would just say that we would ask the court to affirm judge silver's order and i think that this is important for a number of reasons that a number of levels not just in my client but i think that if this effort is not enough for district court judge two to do in order to have a sanction award be affirmed then there is no level that would be affirmed and i think it sends the wrong message to our district court judges in terms of because nobody's going to go through more effort and certainly i think most are going to go to this level of effort let me ask you this  honor i don't have direct knowledge of that and perhaps other counsel can address as to that for you but i it's my understanding that there is something pending in front of the arizona bar but i don't know who or what are the details that's i think a confidential process that i don't have that information i'm just trying to understand the scope of the remedies you know there are remedies and there are remedies and i just want to know whether absolutely thank you your honor questions by my colleagues thank you very much so we have some causation that have been discussed i think in response your question is why for if if our view would be you look at miller which the court just said i'm not going to follow because i think it's wrong if you look at chambers if you look at our brief on fees at page twenty of our opening brief and page of believe eleven of the reply brief we set out the tests in it's not just chambers in a vacuum you then look at some of this court subsequent authority including the f d a hanshaw case and the district court and the plaintiffs rely on fox the vice which is not in here authority case but look at that because that's where the court said the supreme court said it has to be but for so if you have to go take depositions because you're going to take them anyway you can't get recovery for you cannot apply a but for test in this context when the case is over and so that's why i've struggled to ask each of you ok so what is the alternative other than just saying you know what's inside we can't figure out the but for equation we just give him all the fees but that's what that's kind of what you do i know and i think that that's where you get into the strange the punitive aspect which implicates criminal due process to be honest and your question about how do you how do you then i don't know it was within the court's discretion to vindicate itself and compensate nasco nasco by requiring chambers to pay for all attorney's fees what i mean missing that that doesn't cover the case here i think it's the point that is what for raised earlier which is that case was founded on an absolute fraud it's different than this case where there were actions taken that the judge openly found to be improper why would that just why why would we would cut it off there if there are findings that the judge makes that this is the way to do it i don't know the answer the question because the case would have still proceeded in this case in chambers the whole thing was you know  tomorrow and i'm a little concerned about the good years representation that once they hire outside counsel there are some wall that separated that it's been made in the briefs and you've made it chose this attorney as is represented that's a corporation and he cannot now avoid the consequences of the acts or emissions of this freely selected agent it seems to in this case opens up the question of whether it's accurate that just because good here hires a lawyer who's outside the consulate automatically they are for close from anything he may do could you respond to that please sure so that the difference between link in the district court relies on this they don't try to defend it in the reason is link was not evaluating subjective bad faith and what this court said in the pr decision which was subsequent obviously to link in the bad faith context is the court said that sanctions must be based soley on the individual's conduct not taking into account any other actor so that is the subject of bad fa standard that this court applies and the reason that link is different is because it was not in attorneys fees for bad faith in derogation of the american rule that's what chambers explains that looks at link and then we get to primus in this court when it's talking about the in the individual eyes determination here ok let me ask you another question you do get a chance to fully answered and if something is bothering me all of us know that in cases like this that people don't put everything in writing so constantly we've got the argument they didn't produce anything in the record and you don't expect them to if if the district judge tarred with what their outside counsel did is if they were involved one of either by their employees or by their own in house counsel now tell me what the record shows as to her duties i got the feeling from reading the opinion of judge silver which i've done twice now that she found sufficient circumstantial evidence that it was going on because things like what are your thoughts and things like that there was a communication going on and that she felt that the in house counsel had the responsibility on behalf of goodyear to make decisions what does the record actually show well what's interesting in this case and what's unusual is the plaintiffs got to lift up the veil the privilege and see behind it i mean they got they got an e mail communications between attorney client they got to depose his ok they got to question outside counsel so if there was something there some directive from goodyear that says go do something improper they would have they would have found it your honor and if and if they know there's something done improper and they approve handling the discovery in that way is that sufficient no your honor i think the only thing that we're specifically says with respect to ms oaky is that the point in her declaration which is what i addressed earlier were says you're trying to mislead the court by saying that the woods court compel the production of there's enough evidence of what's going on with the outside lawyers and she has a responsibility on behalf of goodyear let's assume that what kind of circumstantial evidence can she rely upon that she knew what was going on and therefore goodyear has to be into the mix well i think that what i would say is you need clear and convincing evidence here not circumstantial evidence and in the evidence that she pointed to you know what case do we rely on for that so those were the cases they that was sufficient to basically collapse everything counsel did with goodyear and that's what i submit as problematic i mean we you know in house lawyer has to be able to rely on outside counsel i mean that's how the process works  just because you have the final say doesn't mean you're on the up to ten and know every single aspect of yes but that her sumption is that they were hiding the ball that they should have gotten it up if she knew that they were hiding the ball assuming the ball was hidden it and on behalf of good interview she says yes that's what we're going to do then she's she's tied good you're in is there sufficient subset circumstantial evidence of that link no there's not your honor and wise  there's not because we gave all the documents to council i mean if i mean the cases where the client gets sanction is where they don't give him the documents ok but supposedly given the documents because they have to view this other case but they say but don't give  the response to the third its crest she has and so why why isn't judge silver entitled to find that miss okey knew that there were additional tests that were responsive to that request which we're not going to be turned over well because i believe that the third or the to snuff august of two thousand and seven in the woods case which is a very similar document requests i would i would submit it's materially identical and taylor says these are the tests that need to be disclos response to that so the what he is responding to mr must have drafted e mail and with respect to that test at the bottom he said this means we need to produce all test so that was his advice to tailor than says here's all the test so i think i mean if you in the judge kind of went through him parse some of those e mails but i think if you read if that is counsel same produced all test so he says ok here they are not ok this is what each of these tests mean in the end the testimony of the the engineers has been consistent on this and no one found that they have acted in bad faith with respect to the high speed testing question thank you very much for your rebuttal well next hear from mr harrison on behalf of mr wilson i want to go back to questions which both judge wallace and judge watford asked about the context in which this  occurs having been a defense lawyer a good bed i mean i respond to requests and those requests are then refined what i know more about what the plaintive wants and that's what happened here plaintiff expert report indicated that the plaintiff was relying on certain kinds of the fix the defense reacted to that it is soon as they got the the expert report they directed a search for high speed test which they didn't know existed until that point spent several months finding all of the eighty four test results which weren't even in paper form at that point they were electronic records and they turned them all over they believed in good faith that's where the plane a very clearly early on even before the first request for production of documents says that our theory is that the excessive heat was generated when it was when this tire was used for highway purposes but that was your honor the defense point of view that was clearly affected by the expert report which was issued quite sometime after the first request and if and and as judge wallace said if if the plaintiff was dissatisfied with the w eighty four test as being sufficiently responsive they could have filed a motion to produce but count and then maybe you can respond to your opponent's argument that in the inherent authority context forget about one thousand nine hundred seventy if you interpose an case is dealing with inherent authority my understand all the cases i've read make it very clear that you have to have some real intent of spoliation multiple motions to compel this was a this was a legitimate attempt by the defense counsel to respond to the request that they understood and if the plaintiff wasn't satisfied with it they could have filed a motion to produce and we wouldn't be here today but the notion that somehow because they  most they made a mistake in deciding what was responsive and this court has said negligence doesn't rise to the standard necessary to find subjective bad faith and quite frankly it's troubling to me that judge silver rejected all of the evidence of record about my client state of mind mr hancock state of mind both of whom said we relied on the information we got from our client about what tests were responsive to the plaintiff's defect theory they may have been wrong they may have been mistaken but the to infer from that and this court has said we don't want to predicate findings of sanctions of this magnitude on people's inferences now if i think your time is up lost my colleagues have other question i have i like to have you respond to this it's it's what judge saw over in my view and judge silver actually brings the issue  attorneys and goodyear but especially the unis viewed together good year and it's counsel took positions in the other g one fifty nine cases directly contrary to the positions they now asked this court to accept so she's going over to the other cases and saying that there's a difference of what they've poured to do there and here and then she says the positions taken on these other cases when goodyear and counsel were not attempting to avoid sanctions are reliable as explained below this means goodyear your hancock mr months have knowingly concealed critical documents in the present litigation that seems to me that's where she brings it all together now it seems to me that on behalf of your client you need to be able to tell us why that's wrong why why we can't accept that fine well first of all it's wrong as a matter of law because this court has said in a case the fluke case that you can only resolve issues based on the conduct before you in this case but leaving that aside i would argue your honor that the fact that they turned over these documents in woods and shamo and boger indicates a lack of bad faith a lack of subject to bad faith they believed in those cases that they had requests that warranted the production of those documents they got no such request in this case and i don't know how you can frankly translate the plaintiff failure to move to compel into my client's subjective bad faith that just won't wash if as i say if he was mistaken in retrospect and after this opinion and so forth that's one thing but that's not a legitimate basis for the imposition of sanctions under the court's inherent power and we would ask this court to reverse remand and vacate those sanctions thank you thank you very much more here for one m counsel here mr jacobs thanks your honor going to judge white for its question a moment ago i think this is critical e r seven seventy the joint statement of discovery dispute that went to judge silver before the first of these discovery management conferences goodyears said in that statement the theory that you just said judge wofford is bad faith that's why this is nothing like chambers versus nasco there's not a concealment being affected here goodyear is saying look we think until they really tell us you know in the expert opinion a fuller design defect theory we think this whole thing's a fishing expedition now maybe that's wrong but that's why the rules are drafted in thirty four and thirty seven to afford a mechanism and that's why goodyear and hancock didn't lie here because they were showing judge silver if it was a bogus bad argument judge silver had the opportunity then to correct it like this court taught  eggman was supposed to happen and like mr harrison just said to make that subjective bad faith by clear and convincing after the fact is just a bridge too far this case is nothing like chambers that was an extreme sick fraud on the court people defeating jurisdiction selling radio stations out from under r rose this is a guy didn't bring a motion to compel that does not into people's careers in american jurisprudence where there's a rule thirty four and there's a rule thirty seven please apply yeah going carefully in all the ways it matters to this case yangon talked about failure to consider opposing counsel's role opposing counsel can be interruptive in but for cause of what happened here in discovery judge silver was angry i get it i understand it but misunderstandings do not all have to count for six points misunderstandings do not all have to be everything misunderstanding should not end people's careers it has to be clear and convincingly theory clear and convincing evidence of bad faith that is lacking here on this record and if we look back in and say what good years said out of everybody's presence in other cases matters counsel mr must of speculation said out of everyone's presence in the cone of privilege they later discovered that the heat rise test was a compound or steps and she found that was bad faith but he said it in the private moment she said matter and she disregarded that please follow yeah gman this is a very very serious matter please reverse your honour's case just argued as a mother we thank all of counsel for their argument and very very helpful rest assured hopefully you can tell we have all read the materials we are aware this is a very serious matter we are aware of the impact of this case on counsel on the plaintiffs but it's a court of law and we're going to do our very best to apply the law as we understand it and the court is in recess for the day