the degree of bad fit but i think in terms of whether there is an obligation to preserve documents which is the threshold question of the question there's an obligation to preserve documents at the point in time which litigation recently foreseeable there's a five percent or more so the five percent figure continues to play a role in elsa's and at the time of the first suit being filed against gadhafi in january of two thousand there's an exhibit in our trial record which is at one fifteen zero point zero zero theories that set forth potential set with potential defendants and that the new rated near term actions that need to be had so that the litigation come to fruition now when you've got that conflicts of considerations we would respectfully submit across the board document retention policy at least continue to implement that policy simply because it didn't have a specific intent to disprove a particular damaging documents because what happens in this kind of context and it's stands to reason that part of the reason companies put in place  ultimate sanction dismissal because of the absence of a specific intent to destroy relevant and helpful evidence that would be helpful to the sun you could write of this decision but i'd have to for the first of all i would draw the even if they address the point you were fully intended i will order the litigation but they would go ahead and destroy documents knowing that there may well be relevant documents amongst the captured documents that they destroyed knowing that there will be harmful documents in that cache least two different ways neither of which is present here one is selective identification documents you think are harmful and destroy us because there ar one piece of evidence that is in the microsoft case which we heard about this morning that raises a least an issue hampel testimony is not in there is nothing in th preservation date triggered certainly in the spring of one nine hundred ninety eight when counsel outside counsel is the one suggesting dr fauci and providing the template and doing it whatsoever that britain has ever asked anybody for five percent not the first time we've seen toci not operate so it is true that in the the slides to look for things to keep to mr johnson mr johnson didn't say hakim ask you didn't you are now selectively choosing things that are going to skew the litigation record instead he said you're just a took a long time and was never sure some of the patterns are implementation specific or otherwise needed the product to reverse engineer to completion strategy was just get limited over the christmas season and there's insurgency because we really need to have it in place because we're pretty serious about pulling the trigger and jerry very very first missing in this case it becomes the new therefore we are whatever the precise formulation a reasonable foreseeability reasonable probability both are expressions that judge it could be prejudiced but we think that's a legal error the fact that some documents in categories were used doesn't tell you anything about whether there were other documents in those very same categories that were produced which could have been explosive but we don't know that that's