the hours they claim the work is particularly important because the apple is testified that the work they performed was off the clock in other words it was before they punched in or after they punched down so the county did not have the benefit of actual payroll records that would show hours worked or overtime wages that were calculated so it's important here from the from the plaintiffs in the case tell us what your point is if the court is similar with a record this occurred in the in the backdrop of a deal well investigation that had started before the lawsuit was filed the county had fully complied with the deal will investigation so there were issues and questions regarding who was part of that investigation who may have received payments the record shows the county fully cooperate with the department of labor opened up its doors allowed the deal investigator for access to payroll records and had issued i think the record something in the neighborhood thirty one thousand dollars in back payments so it was very important to hear from the plaintiffs in the case what their calculations were so that we could compare them to what was previously paid the record shows that none of the plaintiffs in the uglies ever made a rule twenty six disclosures wasn't until the summer preceding the trial i want to it was in july tw seventeen that we attended a pretrial hearing before the u s magistrate and we brought these issues to the table the county at the time was suffering a pretty severe financial problems it was having difficulty making payroll pay legal fees and meeting its other expenditures so my task was to bore full speed ahead on trying to resolve the case by learning what the claims were in paying wages and we never damages we never got it in a few instances we got very incomplete it's we filed a motion to strike before the court asking that the court dismissed those planets who fail it was no surprise to us that the amounts even from the iraq atory answers you had some that testified it was six to ten hours every two weeks ok and at that point can you can you educate us on what what objections were raised when they testified and to things that had been in the and the disclosures what specific objection was made and what was the cross examine us a bit you never told us before that you've had this does damages and you know based hours and where was that in the records and the record is clear with the cross examination of these are numbers that you're coming up on direct it when you start looking at the hours that one hundred hours he's working twenty hours a day i'm like ok that's possible i get it's possible i believe it's possible that for some for some months on end who are starting to get too much of the craziness going on as he was commenting about his wildly inflated amounts at one point she refers to what started as a claim that was a gulp he has turned into a whale but how is that not showing that she was exercising her quintessential trial judge determinations who are on the spot and can make these determinations the same thing about the the witnesses in the courtroom and that sort of thing i'm with you you that has said it is actually reversible error to have not stricken witnesses and testimony under these circumstances you have cases that are about the other topic you know where apply rule twenty six the four corners of the rule we would never have gotten and if i understand because it was a bench trial you raise a very practical consideration i think at one point that moses says well i'm on the find fact i can determine the credibility of the witnesses and in assigning appropriate weight which i think speaks to a plea the problem we have is had the corps probably exercised its discretion to exclude the because they failed to answer in iraq toward so i guess my point would be we should never have gotten to that point of assessing their their credibility is as objectionable as we find it considering that some of these inflated hours doubled from iraq to tori to testimony on the stand so that's the issue on the rule twenty six dollars disclosures i think the other issue that i want to bring to the court's attention clear for the court to review goes on to testify that while in the in the in the hallway he had discussions with other option plaintiffs about the amounts that they were going to present to the court essentially composing a script moses or the basically says if you violate the rule i saod scrooged test you cannot discuss this with other plaintiffs and the record is it contains clear evidence that they discussed the amount of hours that they were for you're not going to enforce it and i don't mean to be provocative in the question but i would ask the same thing of the rule twenty six to scott why have a rule that says without requests for discovery you must produce your calculation if you're not going to sit at the end of the day well we'll just let it all in and see what what comes out that was which is what we think happened we're getting back to the sequestration order the judge i think focused on a settlement conference that she suggested in the middle of the day basically myself and mr levy were request talk about possible settlement which the county was always interested in and we did so in the judge i think looked at that and said well perhaps in this sort of quasi mediation settlement conference there was some discussion about hours in some comparative notes about the amount of damages that were going to be requested but the record doesn't support that if you review mr orde this testimony he describes having these discussions on the way to the courthouse that morning well before the sullivan conference he also describes having discussions with the other option plaintiffs in the hallway that wasn't so much discussed so again when when parties violate a very clear sequestration or there should be consequences and we requested that those individuals be struck the judge in discretion decided not to and we think that was an abuse of discretion because these people admitted script in their testimony and coming up with comparative hours read within the context of mclaughlin a failure to make an adequate inquiry must be more than a negligent or unreasonable failure and that's again out of mclaughlin so what exactly happened here have already covered that the plaintiffs in the case claim that they were working off the clock so there's no time record that's going to show over this gentleman work five hours of overtime for which he was paid we did have that never brought their complaints of unpaid overtime to the treasure or to the commissioner's court instead they raised the issue with the secretary at the sheriff's department who said well this is the way it is ok where is this argument again your honor it is that i'm looking at the poll and spree starts on page twenty two roman paragraph three ok the cases i i read are on twenty four so it's part of the argument about their willfulness you're your limitations period isn't within that correct because if you look at they were people at the time when they came on board and its grip on we don't believe that given the county's checks and balances system in place in which time cards were reviewed and double checked by a nd set of eyes that there were no depositions taken my clients made it a point to tell me because of a lack of funds to be very very frugal with attorneys and try to resolve the case the athletes propounded no discover we had a two day bench trial the case was largely dormant for months at a time and i share some responsibility in that we were working through mr levy some of his you personal issues your medical issues in his family no looking at the if you look at the docket sheet hurtled long periods of time where the nothing is being done and then of course the nd element we challenged was on the johnson factor regarding the recovery this started off as a little south of forty plaintiffs and at the end of the day the recovery was do you believe d c do you see for us to just say do this again with more precision or are you saying seeking some sort of rendering today we seek the st option i think the the rule in the standard review would be to remind it back to the trial court for further fact funny consistent with the court's opinion thank you you responsive in this case and there was considerable delay and to this day these deputies have not received their overtime and they admitted that there had been a violation of law the date of trial so it was not just really a surprise we know there is a violation had not been a violation however they ultimately admitted it and to address the last point st if i may have at the attorneys fees there is no objection to the application with regard to any of the hour submitted by my co counsel or myself not one objection was made not one entry was examined by the defendants it was noted by the district judge in her order and i believe we outlined it in our brief that they they never preserve that error on appeal with regard to just copy an arbitrary amount of one hundred and fifty hours this is this is a case that did not necessarily need to go to trial that could have been resolved had they admitted liability early on  rule forced to go to trial with seven days notice and there were periods of an activity but however on the fee up location with all of the hours none of the periods of an activity had any attorneys hours in that inactive time of some of the previous to lay although i did have personal issues that resulted in delay later on a case the early delay related to previous counsel for defendants not mr sanchez but some other lawyers who were not responsive and those lawyers  counsel they never responded to the disclosures providing us with any paper records of the information sought in the school the disclosures that they're complaining about were provided to them and in the erotic two responses they were duplicative questions so all of the damage calculations that the plaintiffs had in this case were provided to them so your position is that every single plane if you got up and testified it was twenty hours or whatever it was that that had been produced  it on cross so there was never a complaint about those responses they they there was just never there was never any preservation of that complaint until trial until they filed a motion to  strike at trial had they complained about this discovery responses other than i'm excluding the people who never responded to discovery they didn't show the trial they didn't stated that those people were struck by the court for seven people there seems to be some sort of disconnect has all the same amounts is the disclosures and all the calculations and i'm going to pull this and this is going to be the case yes the individuals who did not respond to the discovery were stripped by the trite so some people got stricken but then what in the world was the strike based upon if they have all this information down in the in a rugged tori's it's exactly the same as what the disclosures would be that's what i'm not this is and this is a bench  much how the trial went at the end of the st day we were told about one of the morning i believe we were i was discussing this with opposing counsel the judge called us in the chambers asked us if we would try to settle the case it was an informal meeting between opposing counsel ourselves i brought all the plaintiffs into  an empty courtroom upon the judge's order we all came in we discussed the pretrial proceedings and tried to settle and they did the same in another room that they were provided and we tried to go back and forth and we spent half a day doing that we were unable or unsuccessful in settling the case and finished the trial with the judge and so it wasn't just let's talk about numbers it was a full blown take all your clients mr levy i'll give you number two and we did that which address is the reason why the judge mentions that in her her order or her judgment when she talks about their their allegations of a violation of the rule it's our position that they're parties to begin with but even if the last witness did state what he said on the stand he was cross examined about it the judge warned him about it the judge took it into consideration i think she even mentioned in her judgment that they had asked some of those those people had asked for excessive amounts of she said that she understood that if i think or believe what she said her orders at that they seemed like they were more aligned in their testimony the nd day which was also after the mediation so she said i don't know what it's to do but she cut it down to an hour a week of overtime versus five or six that they were asking for look but we do know what it was due to right i mean at least one of them specifically said in response to the cross examination and you all talked about it yes sir and that's sworn in under oath so we agree that there discuss the case these are two witnesses that have justified about talked about the case on the way to the courthouse their party plaintiffs then in the hallway i believe under cross examination said yes i talked to them so i would or said that i talked to them in the hallway but they had also talked with all of the parties when we were in the mediation only a few hours before the judge said i'm i believe that i don't like hearing that but i'm going to make a determination that this is not a violation of the rule how is that  mean it seems like it it literally is a violation of the rules i mean you're not supposed to talk you'll talk about it yes or in the car in the the thing that we're talking about is the twenty hours per month community in the cross examine colloquy so i am i understand how they look some black and white however the judge seemed to indicate when she was reprimanding the plaintive and reminding them of the rule it talked about the issue that we had all got together and discussed all of the evidence of the case and tried to talk about a settlement hawing but the bottom line is but quote but i believe so so they're comparing notes about their hours she was the judge these these players testified that they work significant amount of hours that they were paid eight on an eight hour shift and paid forty hours a week regardless of how many hours they work they all testified that at a minimum they worked more than eight because they had an hour of work at the end of the day when they get back to the station to do their paperwork and then  about how they would have five and six hours over the eight hour shift she gave them all about that one hour that's all she gave them so she cut it back from them asking for their days where we were eight counsel if you do the math if i give you all five hours of overtime which was a signal i guess if i give you all five hours of overtime which is the minimum that number is a significant number you need to go settle this case and that number was did she definitely made a determination about whether the rule had been violated or not she from my memory and and i think the president opposing counsel agree she said that i want to this is a warning and i lightly or that the parties to to take this warning and to be careful going forward i think those were is what she said something along those lines and that's not really a ruling i'm not sure of those things in the hospital the county makes the argument that they do that all the parties have a financial interest in the case they do that in their brief they're not class action actors as the court knows their collective action party has to the case of the party plaintiffs so it isn't they are all employees who have to join actively in the case or significantly more than the number of plaintiffs in the case that actually joined in the case ok thank you i mean i wasn't trying to cut you off you had something else when i said thank you ray answering my question i was saying thank you but i knew if you had seven minutes and if you had something else every really wasn't my intent to cut you off  apartment of labor determination that wasn't just a finding of a violation was found to be willful they assessed see a civil money penalty cme peas which are penalty dollar damages as the court knows those are only reserve  but they complained in actual county commissioners meetings the only evidence that was offered and mind you there was no evidence offered by the defendants at any time they never offered any additional evidence with regard to time worked they didn't offer any witnesses with regard to time work it was simply cross examination of the pro the plaintiffs and this was a case where they had never produced time records so there was a violation with regard to it was their burden of proof in other words as the firm a defense of the hours ok and so they never produced any evidence of that and when it came to the issue of willfulness they provided no evidence of good faith other than that they began to comply after the department of labor let me address the sequestration issue because just as all is correct that there was a clear violation when mr author had discussions with co plaintiffs about the amount of hours that they were going to compose the script at the beginning on day one of the trial and i'm quoting the judge's statement on the record which is at three thousand three hundred and eight the rule has been invoked that means you may not  testimony with any other witness or in your presence any violation of the rule would mean that i would strike the testimony of the people listening as well as your testimony as day one st thing in the morning and that's on page  about witnesses or she's talking about parties i think they're one of the same are they that's the problem with the invoking of the rule and we as we do in texas  that you realize there's an ambiguity there is but i think if we look at the purpose of the rule which is it when this is testimony whether that with this is a party talking about his own hours of you know but i just don't know if she found that that will have been violated if your honor it's my recollection that she did find a violation of the will but she did not feel it was prejudicial there are number of times in the course of the proceedings name is damages are calculated twelve thousand eight hundred and forty three dollars one cent of the highest amounts awarded when you add the liquidated damages the court assessed his grand total take home is twenty five thousand colluding on the amount of hours because it resulted it contributed to an extreme prejudice in the amount that was awarded by the court a total of five hundred and sixty nine thousand dollars based on hours that these guys jotted of those thirteen answers some of them were meaningless answers i think i worked x amount of hours now there was some suggestion that perhaps the plaintiffs didn't understand the iraq toward but it was a very straightforward it's a standard western district damage provider damage calculation in the manner means that you came up with it nothing particularly hard about it  judge speaking it's amazing how they all have different numbers in their iraq tories and they all very magically come in and say fifteen hours per week all of the sudden and they never said it in their in iraq the tories the court trial she's suggesting this all down as she go she's not believing them but she's assuming that there is some time and she's awarding that time or she's not assuming there is some  there is some time and spit she's not buying that testimony isn't that what happened that's what the damage is overall are so much less than what work was requested getting back to my response that all of the data is in the iraq or tory answers and if we looked at them that that's just not true i urge you to look at that for coming there's no comprehensible there are a few i will concede there were probably a handful who who took the responsibility seriously it sat down and in try to answer the question but when you review those in iraq tory addresses part of the record they don't provide a summary of tell me how many hours you're claiming the dates that you claim that you worked them in the amount you're seeking you won't find very many plaintiffs who answer that question in in a meaningful manner