partner together in an accounting firm the parties had entered into a business agreement to transition the management to ownership over time between mr home and mr jerky mrs consequence of the alleged mishandling of a request for information that had been received by the accounting requesting information on the various clients of the makes a determination that because of the arbitration clause in the business agreement mr jervy and mr toma are required to submit their matters to an arbitrator donna toma was an employee of the firm and was not a party to the arbitration proceeding and therefore her law case that was filed continue to remain those cases were consolidated and as a consequence the parties through their counsel reached agreement that the trial court would maintain jurisdiction of the discovery issue because some of those issues in the arbitration proceeding would overlap in the law case where mr toma was a party in depositions of employees of the accounting firm two of those depositions occurred in september of two thousand and twelve and during the course of that deposition testimony it was determined that there had been some publications of what we believed and i think i can say we myself and counsel for mr juror b believed might be confidential or proprietary information of clients or of the actual a as a consequence of that and also as a consequence of some communications that my client sent to clients of the office in september of two thousand and twelve counsel and i spoke and counsel and i determined that it might be best to still the waters by each side reaching some kind of a comprehensive agreement whereby the parties would not publish or disclose outside of the litigation and outside of the lawyers and the parties information counsel and i had multiple conversations on your honor's will know from the record that there are a couple of conversations documented and then a follow up communications subsequent to those conversations i think that the particulars of those conversations are relevant to the also i'm a determination that judge feeney makes with regard to imposing sanctions on roland ton and i am here before your honor's today seeking relief of the monetary sanctions issued against your own tom i certainly understand that the standard here is that i need to demonstrate that judge feeney abused his discretion in a warning the monetary sanctions and i have cited in my brief multiple cases for your honour's three of which are from the fourth district dealing with various sanctions imposed by the trial courts on lit the purpose of sanctions your honor i think is to simply to cold or worse or come hell party took perform in a particular way in the event that they refused to do that and it's certainly we are in differing in our opinions of exactly what was considered on the motion to compel but on the day of the motion to compel hearing march first when judge feeney indicated that because both parties were off the discovery schedule of calendar we should have sought relief from the court sooner and because we didn't those dates but now it's fire both parties have not done certain events immediately that day in the courtroom both counsel of agreed to do an amended discovery schedule and we chose specific dates when discovery was going to be exchanged we chose specific dates when parties were going to be deposed and i would ass prior to that time we had not turned over that information because i was acting under the understanding that we had at least had dialogue about the need for a protective order initially both lawyers said that a protective order would be a good idea and in fact in the hearing on march first mr anderson says i did initially agree that a protective order would be appropriate i then subsequently thought about it and decided that it might be the best vehicle for my clients but we certainly had initially a commitment by counsel that the parties were going to mutually agree to a protective order and then after the entry of the protective order would and twelve i think it was september eleventh of twenty twelve we had agreed to a scheduling order in open court and we had agreed within ten days of that we would exchange our written discovery questions and then by october thirty first we would provide each other with answers we also agreed to schedule depositions of a couple of witnesses in september and then the party depositions november fifth sixth and seventh i believe so we  twenty seventh hearing which was strictly a sanctions hearing is that mr anderson had to file a motion to compel on behalf of mr jerry and that we were both beyond the deadlines in the earlier discovery or  as a consequence of issue of a dispute about the protective order but judge feeney found that one of us i merely me probably should have come to the courts and sought relief about the protective order so mystery anderson would not have had to proceed on this motion to compel so judge feeney says you know the motion for alec had to be filed i found that you did not have substantial justification to outwait a protective order judge feeney basically said counsel you should have given up all of that discovery and then sought a protective order after that discovery had been provided i lost that particular argument in front of him on march get one agreed to but it seems to me that it would become pretty clear between september and november he wasn't going to be nothing it happened so you put in the position of hey wait a minute yes now i will indicate to your honor that i was not in the room when mr anderson had his conversation with charles showered from hinshaw colbert said but he clearly had a conversation with him on october thirt i even had about a one hour conversation with counsel and i don't believe this is outside the record because it was commented on it at the sanctions hearing and it also is recited in mr anderson's bill that he sought relief for october thirty one i again indicate to him that we have this need for the protective order and that i now do with my client because i told him before not going to produce anything without it and now it's an issue it continues to be  indicated to him on november nineteenth that i would still like to have that worked out and i agree honors in hindsight maybe i should have rushed to the courthouse between november nineteenth and december fourth when the motion to compel was filed i believe that the protective order was my substantial justification to not respond to the discovery and i think it says you filed a motion not  at that point your honor i had not i did provide counsel with the proposed order and then when we were both septa for judge foley on december twenty seventh i brought the protective order to the court because i've had instances where judges have just entered protective orders to us fontayne with out motions particularly if there are ongoing discovery of the sphere so i was marshaled with that particular protective order when we went in front of judge foley that ended up being only in chambers conference and the case was moved to judge feeney and then between the time that the case was before judge foley and moved to judge feeney in february i did go ahead and file our written motion for the have tendered the discovery depositions of the other witnesses because there was i'm not outside communications going on by all parties and that was the reason counsel and i had initially agreed to still all of the distain between these parties we need to actively reach out to our clients and muzzle both of it certainly was not intended to only be a unilateral protective order what i believed judge feeney felt was unilateral cancellation of depositions and i would assert your honour's that i think the record very clearly indicates that was done by agreement of mr anderson he may say well i would have preferred not to do that but the friday proceeding those dates we had agreed to cancel our party depositions because neither side had the discovery and then i didn't have the ability to produce the other folks and i would point appearance before judge dress ascii on november nineteenth and november twentieth they were not scheduled to appear in my office for depositions i think that certainly what counsel had contemplated but as soon as i received those subpoenas i received a phone call from their counsel that they were not going to appear and then we on november sixteenth the friday proceeding those depositions had agreed that we could cancel the party depositions which i did have control  and in fact counsel agreed to do that on friday so that we both could notify the court reporter so the court reporter could make a trip and then on subsequently i indicated in my letter that i wasn't going to act  depositions of those other parties because their counsel had told me that they were not going to be appearing and that they were that they had notified the distributors so i certainly believe in hindsight could i have been more proactive in seeking relief for a protective order i would assert your honour's assigned site search should i have been a better record keeper of the communications between the lawyers so i knew exactly the day when all communications ha had broken down about that protective order most likely but in this circumstance a judge t v overlords fifty four hundred dollars in fees assessed against my client in costs and says it's not as a consequence of the protective order then i have to look at what other conduct there was and we were off the discovery schedule clearly both parties work but we cured that on march first by agreement and we move forward on that plan in my opinion no sanctions would be appropriate because there wasn't anything left to coerce bought certainly if that's the standard then perhaps an appearance or attorneys fees for the actual filing of the motion to compel that products to march morning would be a limited recovery but in this instance i do believe that judge feeney sanctions were punitive to the party as opposed to  small i represent eric chirpy in this matter i've got a little bit of a different take on what was happening in this case discovery without filing in court because of the fact that she was not going to do this stuff without the entry of the protective order and the reason that she wanted  protective order was because of her own client's letter that got sent out on september twenty fourth two thousand and twelve she talks about my client publishing stuff to the to the point where it all it had on there was mr thomas and he did that only in response to being questioned by former clients or clients that we're hearing a different story from information coming to an accounting firm request from the federal government it was information being requested that the accounting firm reverdy clients of the accounting firm and one of the court relations  whose information was being sought mr toma had become involved in the corporation ownership lives with the client so mr toma had a personal conflict an ethical personal conflict dealing with this information request from the federal government or at least he had an issue there because he was personally involved what is there to do with what we're talking well i just go back to the original divorce and so we're in the courts and i never agreed to cancel the dance bottom line what happened is the letter went out it was a  judge keating called it spewing bad faith all over the place on page sixteen and somewhat shocking to the court on page twenty five if you would do it my first i called on wall on the twenty seventh three days after the letter went out and explained to her that the letter got out i told her i didn't know if she had seen of before but i wonder you know where times doing that it was definitely damaging the business which my client supposedly buying from her and now i thought that basically mr tolman head shot is widely thrown out all the bad will he could and i didn't know what my client would do in the future to defend himself or if anything but i don't feel on i don't know twenty seventh of february something like that before the march one hearing it certainly wasn't given to me on october thirtieth i didn't agree to it i was upset with  talking to on the phone on friday nov sixteenth she was telling me she was canceling the devs she wasn't going to have her clients here i sent out these notices for debts maybe yes maybe my office put it in the courthouse and judge you know what can i do when all these people are supposed to be at her office is what i understand you need some of them have they represent a sure to her client sure some did and i talked to another attorney about one or two of the spent working on this whole thing and asked for each question and counsel went back and forth and he cut it down if you work on is what happened and that was actual time that was spent trying to get this discovery d that i told him that i did not include that weekend in and i don't think it was included in the final bill it could have been what's your response so the argument that these same shoes were huge they were anything because there was no protective order and demanding a protective order so the first thing he did was he started here in the case he denied the request for a protective order then he ordered a new schedule to be prepared and counsel and i directed the new schedule and entered it and then he moved on to the sanctions i believe to coarsen in force and make sure that that new schedule was then followed you may have to go clear back to this case i mean you know i remember the words at some point in these hearings is classic obstructionism by judge feet and this discovery w the point where yours is due first i want to get yours there's no motion to compel requiring me there's just one the other way and i would prefer the admit that i was getting tired jerked around and if they weren't ever going to comply with their discovery which was to do a week before mine i have probably given no money and so i filed motions with the court and i bring all this of where the court and that's the rest of it but i strongly disagree with some of the searches by counsel you know on friday i'm telling her she's telling me virtually she's canceling and i'm advice in her that the depositions were soon to court order unless it was received written confirmation from her that she's not going to be doing them i'm going to show up seven forty seven in the morning on the day of the test i get written confirmation from her that she's not responding to discovery she's not producing or clients and she's canceled the depths of the other people is a way i interpreted their correspondence and she did make mention of them have another attorneys and stuff like that in the you're already getting discovery is the other side i still had hopes for getting the i mean i'm still talking to dawn while i'm still trying to get this discovery from or i'm still getting promises on october thirtieth i'm told her separate i believe it was october thirtieth we had a court date and on that date i'm told in court that she's got her secretary date stamp in all the discovery for me and it will go out that day or the next day if it right now if your office as we speak secretary is vector date stamp is a few weeks later the story i get is i don't have it it's not ready it's not done yet when two weeks earlier i was told aren't really fighting over this stuff as much as we're trying to be cooperative and work together we've got different interests obviously but we're trying to get this done and finally it became very a you know after the deaths  this discovery orders started being complied with and that was way under specific orders and that's why he says the sanctions i think he also felt that some of these expenses that were incurred should be mr thomas expenses instead of mr church's expenses because of the actions of councilman tom and i think that's appropriate  your argument i guess is the judge to lose weight through the bill cited very carefully what was appropriate and what to our consider in determining sanctions and what was not correct we just don't know exactly what  think of probably not if that wasn't all you know clearly made part of the record but my bill was i don't know if my bill came to you as part of this transcript or with of its and and things like that i certainly would have no problem submitting it but i don't i just assume when you get the full record you could record in the case you knowing and that is in the ongoing case and to me it's an ongoing problem these are not the only sanctions that have been a anderson's bill he tendered a bill to judge feeney for almost fifteen thousand dollars for this particular discovery dispute i have no ability to know what judge feeney included in reaching that fifty four hundred dollars i did specifically at the hearing on march twenty seventh of jack's to judge feeney and clued in things like all these conversations that counsel and i had to try to work out shoes and in fact even the two zero one k letter because in accordance with supreme court r case or by counsel for the party in this case it was that i didn't beat mr anderson to the courthouse on december fourth i didn't file my motion for protective order until we were at issue on his motion to compel but judge  clearly in my opinion posed punitive punishment money damages against mr tom as a consequence of the cancellation of depositions that were not even a line of people that i c counsel it was agreed to him when it related to the party depositions on november sixth seventh and eighth and it was agreed to him on by him on november sixteenth consequently prior to  start of business the next monday that was on a friday when he agreed and prior to the start of business on monday i sent a letter confirming all of that so that really awfully didn't end up here so i would ask your honour's that in this particular instance i there to the court to be considered and judge dean i believe judged the credibility of that letter or the appropriateness of that latter and punished mr thomas as a consequence and his means to do that was on march first i think judge feeney even sas well i'm going to give this fact it's not part of the record and i certainly don't want it in the record about point because i've been working to try to kind of marshal everything i do want to raise one point about the schedule w e did collaborate on that scheduling water in an open court on march first it wasn't a situation where judge feeney ordered me to leave the court room and he was going to honor the order we all called africa fully agree on those new dates for that were like yeah you both comply with this tiger woods were solutions and therefore it was well but in that same instance he indicates to me that any justification for holding back on that discovery before the court was appropriate he said on page thirty seven that i shouldn't be punished because i asserted that issue i then learned on march first that he was going to not my request for a protective order and i immediately agreed to a scheduling order that got this court judge feeney wade credibility's three or from what we were witnesses i mean i guess we can make it missions on behalf of our clients here or there but i truly believe that the information that