this up and i wish to reserve five minutes for revival if i may this the analysis of this appeal really can be grouped into three topic areas the first one relates to paladin's northern m system claims for sanctions that were subsequently imposed against palin and relating to the discovery of certain past experts on the if you trust claims i submit that the resolution here is very simple it only involves the application of standard summary judgment rules of evidence reconstruction the evidence has to be interpreted in paladin's favor and any disputed issue of fact palliatives version of the facts has to be taken as true at all reasonable inferences have to be drawn in favor of power than from the evidence and then finally in most critically of all paladin's evidence has to be considered collectively as a whole rather than each item being action concerted enterprise and also anti competitive effects for joint action or can sort of enterprise although it has to be is a conscious commitment to a common objective which is unlawful and whether some awful can be unlawful in two ways if it produces anti competitive a fact or if it has an unlawful purpose here helen has presented both direct and circumstantial evidence on all those points to concerted action we have a number of express written agreements between my piano power and its coconspirator northridge making sign it's of montana powers nova delivery capacity to northridge on behalf of nine court customers six of those were for five years and there are numerous other ones that were for one year or less if i disputed that they entered into these written agreements that constitutes a meeting of the say or rule of reason that is correct and there is extensive evidence here of anti competitive affects there is evidence that there was a twenty two and a half percent price differential in included in the certainly show that per se because norco in montana power are one entity for if you trust purposes because now it was a wholly owned subsidiary marco it was a gas marketer and northridge was a gas market you know what i'm trying to understand who they are montana power of narco being one energy narco being the gas market or in north ridge which is also a gas market so they're at the same level of competition what they did was for close paladin from access to customer gas marketer because it's wholly owned subsidiaries of natural gas marketer and north which is an ash natural gas market so as to the boycott yes they are horizontal competitors as for tying you don't have to show that for tying the conspiracy is made out simply between montana power and the nine core customers who agreed to the timing arrangement and the elements of a person a tie are few separate products which they're worth here that was firm gas delivery on the one hand and then the five year sign that's on the other and then the for closure of sixteen of the not insubstantial amount of competition the pallet and it was foreclosed from being able to compete for the nine core customers because they'd been signed up and locked up for five years when those two components are met it's only necessary that if you that anti competitive forcing be probable and here i think anti competitive forcing speaks for itself because there was a twenty two and a half cent price differential component and nonetheless the consumers all signed up with the montana power or thr joint venture to accept those sites that's not what they would have done in a competitive market so i think the standards for her say what caught her say timing on that but i think it's clear there anti competitive effect here there's  higher prices for consumers when you factor in the twenty two and a half percent component what you find is the paladin's prices were lower and no less than equivalent to those of montana power northridge in addition to that there are very clear resulting anti competitive effects here what happened was a paladin got caught in this week's worth of the sport closed from having access to these customers meanwhile it was on the hook under its no big contract for eight hundred thousand dollars competitive fashion it could have offered assignments for these customers but it would have offered them for one year not five five is very atypical in the gas industry one year or less is typical to get would not have couple with a twenty dollar for m c s upfront assignment fee and three it would not have put the customers on the hook for the noted the man charges for five years that combining those factors five years is very typical the multi year contracts are typical only for large volumes ten thousand and up that's what the evidence in this case shows these were much smaller volumes in the smaller viands are generally handle with one year or shorter turns around and goes to when you signs that's what they get and i think from that you can clearly infer that their purpose was to lack these customers away from paladin the purpose was to get a five year contract that was a first for some how it's like the english setting with hook in the fish mouth once they have those customers on the line the customers then do business only with them and don't do business with pallet so what you find is that over time there were times when during the winter periods the evidence shows northridge had as much as twenty five thousand out of one tailor powers thirty thousand m c f i'm to say that from montana power that it was marketing and so that that was the vast bulk of what m same customers were purchasing a great deal of gas is just something or purchasing all of a kind of a five year contract that's correct your honor it was it was the cornerstone for which everything else flowing once they got that in place the customer simply continued to do business with them and the evidence shows those customers all stayed with north ridge one can a power except at the end of the period there were two that didn't stay with them and that was because northridge didn't build a year what the thing ruled is that by using the five your assignment the twenty dollar upfront lackey and fee and the five year demand charges they foreclose paladin for being able to compete for these customers and this was the bulk of what paladin could compete for in that northern market and the end result was a paladin goes out of business montana power so instead of to prove a year of firm delivery rights you end up with one so that's one thing i can better think that's one and the five years time it's expire lantana power takes away the firm delivery option and leaves customers only with the option of interruptible delivery the third thing that's wrong is you know what's wrong why is that it's a reduction of are reduced that is an injury to competition it is an injury to consumers and paladin was injured as part and parcel of that that makes it anti competitive the third thing that was done is consumers initially had available to them sixty thousand m c f hear predatory in one sense you are i will say predatory in terms of pricing below cost but what predatory the ultimate purpose here in the ultimate result at montana power achieved is is the one who was left standing at the it now controls seventy five percent which is a monopoly market share of the over from delivery a car away and because of the other applications it's filed for six times as great an amount one hundred eighty thousand incurring they looked at the big price for gas and palettes price and never realized that there were all these other components that should have been factored in and that really made at any price higher than pallets price and higher prices along with recognizes that in certain situations there are what are called hike information costs where the consumers don't have all the credit of information to make an intelligent choice and i submit that's what happened here i need to touch on a few other points rights what's the situation of competitive equilibrium a competitive standoff from montana power and narco implemented in a rough couple storage and then applied it in such a way that aladin couldn't get gas in the storage there were numerous interruptible shippers that ship gas into storage and then narco was able to divide and conquer them because they each had small volumes and markets say to them you know you pay my price i'm setting the monopoly price or you pay my price or else i won't buy your gas those customers can't get together and make an agreement not to deal with narco because that would be a boycott so what happens is narco becomes a monopoly buyer and that's how capitation was destroyed at the grizzly interconnect downstream markets if i recall correctly judge ruled ok and the fate of point relates to say actions and that is for that paladin never had a hearing on the record in court in the entire seven and a half years of this case until today much less ever on the issue of sanctions in this court as well in french rule that you got to have a hearing in court first so there was never any notice before her the judge had made the decision to award cause was never really noticed that he was even considering it and there's no chance to respond to it it was a fait accompli and the rule of course will thirty seven says it's only costs that are caused by the discovery failure and in that instance there were no costs caused because mind had a power took the deposition of those two experts in the normal course just like it took every other expert step there's a second round of sanctions  around or there was notice because there was a motion but there was no hearing on the record and in neither the first nor the second assessment was there ever any written explanation and you've got to have a written explanation so the appellate court can review what was  i e a horizontal agreement to fix prices or it has of anti competitive effect in the os just the market as you've heard they claim monopolization  and attempt to monopolise by narco imes i'm somewhat confused about their relationship of how they relate m p c and narco with regard to the i'm system market sensor allegations in the but the expansion of competition is their claim of har including firm glass supply from other suppliers which create increased competition which our then would then have to meet in the our system play this complaint is that fundamentally what it says is where the record taken as a whole could not lead a rational frier fact to five for the nonmoving part there is no genuine issue for trial that has been followed up in this circuit the following facts are without any dispute my hand a power company's first duty is and was to serve the needs of the customers on the system in the state of montana that includes two types of customers now previously only one bundling or i do that order persons with over sixty thousand a year in the use of gas and dust real customers primarily cook alike to unbundle their service they would then receive transportation services from montana power pow in the fall of one thousand nine hundred ninety one c i g entered into a contract with nova to acquire certain firm transportation rights on the nova pipeline the nova five y is an alberta canada pipeline customers on the on line fusion capacity is that which gets in states like montana minnesota new york and others who have very severe winters sometimes so while you may not so you never have a steady demand for gas in the winter w contracted for peaking capacity to cover speaking capacity requirements by acquiring transportation you know the car thirty thousand now we point out did not take it for their entire gas supply they took it for last summer as well as twenty percent sometimes forty percent now and over forty percent of their gas supply and it was not tied to anything all it was was paul on which is in the chemicals business and they would use these are customers that use natural gas primarily in their production as opposed to what about customers for more for gas for home heating they were not included if they were core it's concerted action of something i thought the district court was imposing some other kind of requirement heineken sort of activity i didn't i didn't actually understand the district court to be imposing a different times up to seventeen thousand or twenty thousand that's when we're buying or own gas to supply core customers it has nothing to do with an iron core market and that's very clear in the record the most that was assigned boycott the boycott from their argument consists of the fact that montana power and the customers entered into a contract by which the customers would buy a portion  absolutely nothing to prevent those customers from buying gas from anybody but gas suppliers and that's why i would say it opened up the ability to choose suppliers to the customers and if the the opportunity or has already looked at the affidavits of the customers plum creek louisiana pacific all the rest of them it's very clear that they consider this a very good option for them to allow them to choose competition downstream where there is no well considering the fact that this downstream market for one hour as distant for many years before the interconnect was even built between montana power and c i g it's border everything the first lateral that goes into those two hundred twenty five thousand and c f per day now this is in comparison to marcus holding ten the suppliers of the interstate transportation grew and grew and actually when the biggest one the king and the smallest one of the smallest ones was an article also the ten thousand y one of the essentials of the essential facility doc and is that the party be denied access even if you said it was an essential facility they have to demonstrate a denial of access which is absolutely impossible in these circumstances to consumers and that's pollard happened here how others problem was that once competition entered because of its good its lack of funding or whatever it could not compete with incoming competition evidence and what the fruit because opinion suggests is fair here's what you do in a valuating these conflicting versions of the evidence in a summary judgment context when you do that i submit the pal