phony order so that you could get a commission meanwhile i'm been known to the lady that fired her great kid and she was talking to the f c c now my problem with it is suppose let's simplify and this into a hypothetical instead of this case suppose a person in vessels from an employer the employer catches the embezzlement and fired her for embezzlement but notes to the employer the person is talking with law enforcement authorities about act criminal conduct that the employer is engaged in i do not understand why talking with the authorities about criminal conduct that the employer is engaged in would give the employee immunity from getting fired for a vessel not in my hypothetical case i would like you to say whether it would or whether you would agree with me that it wouldn't and if you agree with me that it would not give the employee immunity explain why this case is different from that hypothetic arnor this case is different for several reasons so that that so this case is different from that case for some result of how you would agree that the embezzler who secretly talking to law enforcement about the employers crimes would not be immune and could be fired if it's in that situation none of the people from us she stealing right out of the cash register but she's talking to the cops that when we get in trouble if we fire her they have to let her keep working and stealing or can they fire her despite their knowledge so long as the reason they're firing her is the embezzlement your honor in the situation and giving it again it's entirely different in this situation first thing in the heart of the starkest contract they have never than that you never talk in this time about they never talk to olson about it they made this big they don't even have to be right not that you've demonstrated anything to suggest that they're wrong all they have to do is be firing her obviously behind the scenes and working on it and it was the supervisor that was named as a defendant actually is the one who actually made the decision to terminate him is there any evidence that she wasn't stealing they knew she wasn't stealing and the real reason they fired her was because she was talking you know in this case in this case well anything that evidence that you didn't or signature on an order in order to get a commission you're not entitled complaining to law enforcement or her reporting law enforcement and then finding out about it is there anything a month she didn't do in the ninth circuit there is no evidence that she did it that is you can do it she denies doing it i guess the after reporting to the government would falsify contract that she would look to make one hundred thirty eight dollars on when her annual income was one hundred seventy thousand dollars when she was reporting what does make sense your honor is that spot prices they got in touch with people it peter so she's we know that from steven richards they got in touch with him that's any richards brother they at this time didn't know what the government had on and then they hanumant is the ones providing the government with the information well computer associates wanted to do was to find out what she was telling them that's why you have the cats in else who are right after she had reported you know we need to find out when i ask you my previous question you said that starcraft that none of this could be proved about her falsifying and that starcraft was said that it couldn't validate signature was cut and pasted so i pulled out the grace caden decoration and the letter from starcraft to see the context of that it's a letter from starcraft to grace cadence and it says the facts of the  someone a computer associates cut and paste a jury signature for a prior agreement cannot be validated or disproved by starcraft however stark rest has just recently received an agreement for its review that review is not been done and start for us has not signed the agreement and then it's in handwriting by evidently by the person who signed for the vice president of starcraft this whatever it was provided to internal water upon our request and notes arrest has not yet signed the contract in question that handwriting could also be by grace kate and it's attached to her declaration so it looks as though there is proof there it was a forged order skins declarations says basically that's what i found out that's why i fired her and i wasn't even aware of anything suggesting in any way shape or form is the way she puts it that she cut and paste that document that's really the heart of the problem it's something that's we prove the trial that she was the forger and and that's why in going to understand and there's this big rush to get the laptop that i suspected that she had the laptop the meeting they were ripped from her hands right there whatever i don't get this part it's their laptop she no longer works there why doesn't she have to give the laptop back because she doesn't want subpoenas a lot of grand jury subpoenas they just tell you to show up at a particular place and testify and they don't say anything about a laptop and what i'm thinking is it's not her laptop it's their laptop now they destroy evidence then they get another federal charge and on it and if she thinks the government ought to have the laptop she can call whoever she's talking to with the government and say hey they want my laptop back and the government can take it with a search warrant or they can take it without a search warrant and they can fight with computer associates but it's not her laptop your honor the top executives of this company clinton c e o have been charged  isn't the are you saying that it's soon as she left with a laptop she gave it to the f b i i thought she kept the laptop for quite a long period of time she kept laptop in government she kept the laptop and that was well after she had been fired and taking a laptop with her sir picturesquely and refused to return it in response to her former employers run a laptop was at her house she didn't take it surreptitiously anywhere it w in response to enron in cases like this one right here rather there is a very strong public policy in this country that has been public policy the state of california for twenty years prior to that when they did their own was floor act to protect to encourage whistleblowers well here i'll tell you what the stated policy of the california legislature when they did the act was that employees are of a corporation or a unique position to report corporate wrongdoing to an appropriate government a law enforcement agency that is the public policy the state of california to encourage employees to notify appropriate law enforcement agency when they believe their employer is violating laws and that it's an intent of legislature to protect employees report wrong  of retaliation under the mcdonnell douglas burden shifting the employer has to establish by clear and convincing evidence that you mentioned action would have occurred for a legitimate independent reason even if the employee had not engaged in protected activity in other words so clear there's no room for substantial doubt your honor there are questions of fact in this case that would giving laptop to the government until november two thousand and three i wealthy it seems like she would be given the laptop to the government at the very latest and april two thousand and three when she had a meeting with them she was subpoenaed by them and she was basically under the agreement of that meeting she hung on to the laptop until the f b i agent came i think that out of the concern that i have is you're absolutely right that it's federal policy to encourage whistleblowers however there is a real risk when a corporation is committing crimes that the employees figuring that the corporation is not a very good position to go to the authorities will commit crimes against the corporation for both committing crimes and the shareholders practices the minute the company found out about that they made an attempt to find out what she was telling one horseman and then she when she said no i need to get an attorney because i'm afraid of being retaliated against  involvement but in their briefs they ignore right or cart the individual who the plates were mailed to and who was obviously involved in if not running that investigation cats who was also aware of the complaints who was also in the loop on that investigation most importantly yes your honor yeah and then finally any richards he's the one that made the decision to terminate or even in even this ruling is allowed to stand your honor it will create even there a danger suppress them which would guts the entire policy behind these whistleblower statutes because any employer particularly employer with billions of dollars and all these resources they're going to figure out some way to get it in trump up some way to get you terminated and get you out of there in your honour's i think the jury could easily infer that that's exactly what happened in this case and what little time pages three thirty six three three thirty eight and then three forty one through three forty two that's fines deposition where she answer the question who fax this agreement into the sales accounting office and she said i did she didn't say gee i got the  voicemail in response and she confirms in her deposition and that the voicemail is the transcription of it i believe is an exhibit and it's authenticated by garcia's declaration where she explained why olson signed she didn't say gee i have no idea she said is simply that i think the court correctly has been passed cases taking a position as as other circuits in the state courts have that you can't then the measure can't be can the employer actually prove the misconduct it has to be is a reasonable for them to rely on because the and she complained that's conceded they say we've also stablished that some people in the organization knew that she complained i can see that they also say that some people in the organisation who knew about the complaint knew that this investigation was going on i can see that what they want you to do is to indulge the inference to say it is reasonable their fortune for from those facts two things one that those people with knowledge were therefore that they must have been involved in investigation i submit there's zero evidence of that and to not only that they were involved but actually doing something to a factor of influence the outcome of that particular way and if i may i'd like to go to addressing the evidence they say should support that inference because in my view it would be an unreasonable one and again their burden is this court has stated before is this come forward with specific substantial evidence a pretext now what they point to is four people and her indirect manager he was the head of the the sales section that she was working in in california george cats who was not the general counsel he was one of several deputy general counsels in new york dorothy pa accounting and somebody either don or brian or part but i'm not one hundred percent sure he literally said i'm not one hundred percent sure and the upshot of that conversation was to let him know that this contract was being investigated he's this richards testimony was that was  they let me know they didn't ask me to do anything and i was going to wait to hear from them that's the evidence that they're trying to show that urquhart was one of the investigation from somebodies testimony saying i'm not even sure if he was on the phone the second piece for urquhart is that a conversation that richard had at the end of the investigation were where hoffman called him and said internal audit investigated they concluded it's a forgery and the recommendation is it's terminable funds and again richard said that he believes urquhart was on that must have been involved in that investigation and therefore and also doing something to influence its outcome and i submit that's not a reasonable inference for me in the ribs testimony about a conversation in which he's not sure urquhart was on the phone at least as to the first  terminations and it is true that what i disagree with mr blakeley is i don't think you can say richards is the one who pulled the trigger on that in the way you know it's a big organization and the way it came to richards was this is what it is for a lot of the saying for somebody when you get which agreed and i think that's but that's the evidence that's lacking here when you look at the other cases that they're relying on in one case that i think is important from this tting reprimands determination implying she does not have the power to fire at i'm thinking somebody have to have the power to fire right now that person may try to avoid taking responsibility in case things turn sour that person may rely on recommendations that person may consult that person may do all kinds of things with somebody in the hierarchy as authority to fire that must have been developed in the in the record who actually had the authority to fire here's what i want to know who had the authority to fire her and what is the evidence that it was because of grace cadence report and what is the evidence that it was because the person with already to fire her knew or somebody else who recommended termination to that person knew that heineman with talking to the s e c right is to the first part who has the authority to fire her the reason i said that it wasn't developed as i believe that is the case what was developed as the recommendation came from caking and richards who was the manager of the sales organization that is the most developed part of the record is that he at least had a getting stiff advice from h r on how to do it and staff advice from kate on why it should be done right now did anyone tell richards this woman is talking to the f c c no the evidence on that point is that he was named in the d age complaining about i believe harassment and discrimination and that he was named in that charge and received an but i don't believe there's evidence in the record about her richard knowing at that time that she was talking to the  c c and one point won't while i'm there your honor to go to your question about the subpoena i think we need to clarify the record there that the supplemental excerpt of the record pages five hundred nine and fourteen through sixteen that is the only evidence in the record pointed out correctly she doesn't turn the computer over until five months later and she testified in that same portion of the supplemental excerpt i decided to do that she didn't hear anything from them until november so five months later when she was invited to talk more in new york at that time she turned over the computer so the same thing about the subpoena requiring the production of that computer and so i want to clarify that point because they're actually the subpoena isn't in the record it's only her testimony about it and that limited testimony only establishes that she was called in in april and was not questioned the turn the computer over at that time returning to the other evidence that they rely on and i won't go through my talk a little bit about an was informed of the results of the investigation and in talking richards about how do with that determination same goes for it because there are multiple investigations here there's the investigation of  of yes and my point there that's going back to the reasonable inference that what they want to do is say if you have the fact that someone knows about protected activity and knows that this investigation by greece caden is going on that you therefore issue is that richards would want to fire her to retaliate for is naming him and her hours with discrimination complaint in greece cadence report was a mere pretext for but i look at is they're going to come forward so it so if you do i'm correct on that point that the investigation of there's no evidence of that is protection so what you have is an independent investigation that comes out with the result terminator and then richards who has knowledge of the complaint which i can see it right there firms to come forward with specific substantial evidence to say that him following that recommendation which seems eminently reasonable he's on the record developed by hate i would argue that for him not to follow that recommendation when you've got internal audit department telling the description of trade secret information consistent with the statutes and that is that the supplemental acts are at two eighteen the primary defense to that they've offered to the claims is that her conduct was privileged under civil right and she she did not surrender it to the government until five months later and it's not clear at all that that was pursuant to subpoena she finally turned it over at her deposition almost a year later so i don't see sections forty seven as ar i submit is an opposite because in caesar what was going on is an interesting situation caesar was trying to buy sophisticated technology from fairchild fairchild was suspicious about seizure in terms of caesar in terms of  know you know you've defrauded us into getting in trouble for the damages an act they were seeking there were flowing from that conduct here we're not saying damages ever seeking to recover are flowing from her talking to the government it's simply from her retaining our property the other point i'll address briefly is the unclean hands the fence i think the park case in the you know watch case cited in our brief make the point that very clearly unseen hand doesn't apply just because out there in the world there's a problem with one of the pardons it has to flow from conduct directed by the party to the other party in the league ation in other words in this case one thing hands to apply they have to show that computer associates somehow was targeting heightening through these issues of accounting fraud absurd otherwise it would be any of these core any corporation that has a problem could be viewed subject to an unclean hands if that's a case like this if there are other questions obviously happy to answer them otherwise i would submit how thank you