first the district court in failing to grant summary judgment but you pull that bike a little closer to where you are there my apologies the better thank you first the district court erred by failing to grant summary judgment because mr carroll could only speculate as to the actions he attributed to his former supervisor donna hart he didn't have actual facts he only had conclusory allegations at the summary judgment yes ma'am i interrupt for a issue the cases that i read appeared to be cases where there had been a trial and there was still a complaint about the summary judgment but i apologize that i did not look at that specific question  i look at lynn versus united parcel service cited by this court in two thousand and one quote we agree with other circuits and hope that this court will not review the pretrial denial of a motion for summary judgment after a full trial and judgment on the merits in that at that question and so perhaps i should move on to my other arguments because i'm afraid i do not have a better answer to that question the second reason that we request a reversal your hono the court the district court erred by failing to assess sanctions against mr carroll because he spoke only aided nearly the entire body of documentary evidence in there by was able to shape his own narrative without the risk of contradiction by documents and prevented a t a i from gathering evidence that might have provided a defense because it might have provided evidence about the totality of the circumstances with respect to the sexual harassment as well as evidence pertaining to the claim of unpaid wages the third reason for reversal your honour's is that the district court erred by admitting into evidence individual pages from compilations of emails that were never properly authenticated and could never be authenticated because of the spoliation and also the emails were unduly prejudicial and of little probative value because they post dated the alleged harassment and created a risk that the jury would punish a t a i for the abusive emails the post stated the employment situation rather than for conduct that occurred during the employment turning to your the second  one about the lack of sanctions for spoliation the district court as i read the relevant parts of the record found that there was no bad faith on carol's part that was no altar and there were no alterations of emails that eighty a had either the original emails or access to them from hard to count and that carol had given his phone to  a or at least made it available during the e e o c proceedings that i get those things right at least what the district court said i agree that those were points that the district court focused on emails i think that the district court may not have appreciated the point that we were trying to make at that hearing which is that mr carroll on the day he went to the e e o c he printed  compilations of e mails by his own testimony those two compilations were one was sixty nine pages and one was fourteen pages and we know this because he described having printed these e mails at his own home in his from his own printer and we know when we look at the exhibits that i presented at that hearing the page numbers and the date stamp on the bottom of each of those pages shows june twenty twenty thirteen page one of sixty nine page two of six united cetera and the other compilation it's page one of fourteen page two of fourteen cetera except that not all of the pages are in existence from the two compilations we have twenty eight pages remaining from those two compilations sixty nine pages plus fourteen pages there should have been eighty three pages in those compilations only twenty eight pages remain in existence the other fifty five pages are unaccounted for they were print apparently prints printed by mr carroll and then he removed them from the a lack of motivation well we agreed that that should be the focus and we believe that there were that she did abuse her discretion in finding no bad faith because in addition to that alteration which mr carroll has never explained in other words throwing out fifty five pages he also deleted the electronic record of all of those e mails he then hid that fact by first saying that we could see that he would produce the electronic versions of the e mails during discovery so that we could look at the met a data and second and then later saying oops we don't have those and then when the pay when the pages from the compilations were actually produced they were produced out of order so that it actually took a lot of careful review to figure out that pages were missing from those compound hasn't even stablished in the record but hearing all of that and  of the phone his story as a ditch way out explained it in the judge preparing to accept that explanation whether i would have someone else would is beside the point the judge accepted that explanation that the judge should accept that explanation but we have three different categories of electronic record that have all vanished at the hands of the plaintiffs at a time when we didn't win eighty eight didn't even know that he was going to make a claim then it's by the fact that there were the three different three separate incidents the fact that there was the cover up those were things that the court paid attention to for example an oil equipment company versus modern welding those  are things that i think that the district court simply did not did not fully focus on the timing of this poly ation the fact that the electronic record was also deleted in addition to the paper copies being removed from the compilations so that those missing fifty five pages from the compilations couldn't be recovered electronically they're completely gone i think it's the diff it's the multiple events of spoil ation that explain that support the finding a bad faith and i think the district court simply did not notice or pay attention to the multiple different events as fully ation that warranted that determination  i know i'm almost out of time just as to the evidence three errors there was no authentication we had asserted that that issue in our motion in limine e off into cation simply did not happen and then the then the evidence that the e mails that we complained about were admitted into evidence that were from a different time frame the later time frame after the employment relationship what was the evidence basis for admitting those e mails mr carroll was rick is required as this court knows to show that his belief that he was being sexually harassed was both subjectively and objectively reasonable so mr carroll from his position he's sitting there on the stand and his supervisor never made an appearance at all not during summary judgment not during the trial so you have this man who is saying this is what happened this is pretty evidence you asked him a question with respect to the e mails actor mr carroll lot those are the only ones that had any sexuality or correct your honor ok so those are the ones that you focus in on the trial correct correct art so what is the legal or the evidence basis for putting those before the jury again to show number one day she sent them it also spoke to what happened before he was fired that's just that sounds like you're trying to prove something was said during the time of employment by somebody she said after those so what is the legal basis for that to show that his belief with those thoughts subjectively and objectively reasonable which is he's required to do under title seven under sexual harassment case additionally your honor to show i don't know i don't those e mails mr carroll's testimony was that she said similar things while he was working there and that this just continued even after he left miss miss hart attempted she was so obsessed with resident carol as she worked his shift for him we only saw that through the e mails that she continued to work his routes for him for approximately two weeks that she put in his time right after that's that's the evidence but what's the legal argument i seem to me the argument was thrown out that it was state of  mind i don't see how that applies and that was the rationale of at least the trial judge and maybe the trial lawyer for mr carroll or you but that was the only thing that was put out there i don't see how that applies are still a ploy when she said the e mails speaking for the company and she's a tip that she's asking him to have sex with her come back to the company so it's continuing i mean if she if he hadn't been working for the company yet and she's saying you know you get all these sexual favors if you accept the stops the same thing afterwards he gone the company doesn't know he's gone yet because she is putting in time for him and pretending that he still works there while she's buying time to get him to come back well if it so are you saying that michigan's interest by the defendant absolutely you know that it wasn't employment we raise a number of issues there was a motion in limine he filed right i think during the pretrial hearing and we raise a number of reasons why those e mails were admissible after employees left to be relevant to the treatment of that probably while he was employed it's is it established that number one one of the major arguments at trial was that donna hart didn't have access to his time sheets donna hart could not have been have manipulated his time throughout those e mails she talks about how i'm working for you and you know hoping that you'll come back and i'm putting in time for you which goes directly to the notion that she had access to his about these e mails basically i read the closing arguments almost exclusively about these e mails and the only one false statement about wages so why couldn't they should have been redacted to take out what was really the offensive part of those e mails which was the sexual discussion some of the e mails were redacted and i don't recall specifically which e mails were that but there was some redaction of e mails but not this not the part that you argued in the closing argument was the crux of your case was and would obviously result in a information in i understand asking you the legal basis for admissibility so the defense raised number one they raise a couple of objections yes they raised authentication as one ok so let's start with that yes why were those post terminations e mails at least post terminations of mr carroll why were those properly authenticated mr carroll properly authentication requires the witness to  show that the document or the evidence is what it purports to be right mr carroll was able to say he was the recipient of all of those e mails he was able to identify his e mail address he testified to that he was able to identify miss carroll's e mail address he testified to that there was a back and forth sometimes she would send him an e mail and then he were plow right away she correspondent with him in a certain way that he was familiar with and we went through this with respect to each e mail and the judge was satisfied that mr carroll was testifying about e mails that were in fact what they purported to be ok did a t a i raise a hearsay objection to those e mails  they did i think that they did raise hearsay objections ok so tell me why the hearsay objection was not properly taken because we were not offering those e mails for the truth of the matter sorted there in those e mails were offered again as i was saying it's very very clear that mr carroll had to stablish both subjective and objective reasonable ness with respect to his belief that he was being sexually harassed by his supervisor we offered those e mails to show his belief was both subjectively and objectively reasonable what he had been cut cross examined about it was subject to believe all along that it he had been i mean that was  was it not the case that the defense was that the company was taking the position and tiger that stick to his subjective belief as well of the object that they were they in fact that they said throughout that we just don't to be credible throughout the trial and opening argument afterwards we just don't find mr carroll to be credible which is why the case did not resolve with before going to trial and so mr carroll offer those evidence those e mails to show this is what i was dealing with and to show the frequency that this was happening started when he worked there she was able to reach out and grope him whenever she felt like doing so she was able to say whatever she wanted to say to him because he was right there when he left the only way she could get to him to continue her harassment was through e mail and through text messages and through telephone calls and so she continued were during his admit those e mails the e mails would have been in your view prejudicial so she absolutely not your honor mr carroll testified at link with respect to what he what he went through but more importantly donna hart was not there to deny it we believe the jury would have come to the exact same conclusion when miss when counsel stood up during her opening argument said unfortunately she's not going to be here so we only had mr carroll's testimony and evidence they would have come to the exact same conclusion well but i go back to your closing argument your closing argument was almost exclusively about those e mails the post employment emails time and time again you went back to those yes because we make me that was so important to you that you spent most of your argument to the jury on those yes to it could be suggested that that might have confused the jury that they were that these e mails were important to you and to mr carroll because they were continuation of the sexual harassment he suffered while he was employed those emails were important to me and worth emphasizing during closing argument that counts because counsel decided that they would hide ms hart and offer their position in place of it what they said at trial was we haven't heard from donna hart therefore makes it ok my argument was we've heard from donna hart we heard from donna hart loud and clear and the only way that i could convey to them wha response to their argument that we've not heard from donna heart is through her e mails that's not true you had your client testimony it was me and refuted you did need those e mails you came in testified she said she said all these things not any e mails but she said these things and i was not refuted in any way that was announced and that's what you're saying that's not what counsel said it trial counsel said we don't find him credible donna hart is not here i'm argument is she is here she has made an appearance at this trial this is what he was dealing with and so our argument was you know you we should offer nothing else to show that he's not credible there was one theory thrown out about them perhaps been a conspiracy together there's this argument about spoliation the e mails some e mails being missing no e mails there is nothing says speculation we don't know the only testimony we have about the e mails is mr carrol testimony that those e mails that we actually had a trial were the same as the conversation the verbal conversations or statements that she made to him donna hart made to him while he worked there and so this is you know them coming up and saying oh she's not here and just understand all of it very persuasive but go back to my first question you have to have a legal if it intrigued basis for admitting evidence has to be that it is relevant well of the e mails were relevant to his state of mind he is required to show that the harassment was both objectively and subjectively was about i'll show you a bone that corroborated his test about what his credibility was relevant is because credibility will grow that they said he wasn't credible they just didn't fall incredible that was the argument from day one and so the notion that the lower court decision should be reversed because of when mr hart mr carroll appeared at the e e o c without counsel counsel for eighty eight was right there he handed over the e mails to her he had his phone with him no one told him don't trade in your phone because you know two years later no one told him that he had no idea and then even more important the e mails that were not turned over the e mails that were lost with the phone the text messages just say it more of the same there's absolutely no evidence giving here and you had the jury giving a hearing and everybody came up the same way and so we would respectfully ask this court to uphold the decisions of the district court judge  handed over at the u s c meeting you know she conference where the twenty eight pages remaining out of the original eighty three that he printed the day that he went to the e e o c he still is never explained how he printed eighty three pages in fifty five of them vanished before he got to the e e o c that day so then this was before it eighty eight even knew that he was going to make a claim on what was what was the record evidence about the phone being available to a t a at some point during the proceedings your honor during his deposition his testimony was that he did not have the phone that he that he lost it before he ever went to the e later changed his story at the at this fully ation hearing and also a trial and said yes he did have it at the e e o c i can tell you your honour's this is this i didn't testify at trial so this is not in the record but i can tell you that i did not have was not offered any access to anything on a phone at the e e o c conference there was a question about hearsay we did raise a hearsay objection during the as part of our motions in limine e the evidence in the record is that from stephanie jodi who was ms hart supervisor  testimony of what i think what's the hearsay objection i'm sorry what's the hearsay objection well what is the truth what is the truth of the matter asserted it's whatever the content of the e mail is that it's one of them and tell me what the the truth of the matter asserted is well for some of these she appears to me making representations as to things she is doing to the extent that she is doing that then there would be a hearsay objection and she was not there is no evidence in the record that she was still employed by eighty eight after after early may twenty third teen when her e mails started being sent from her personal e mail and not from her a t m e mail so there's nothing in the record th suggests after early may that she's still with a t s a so the to the extent that she is making representations in the e mails about things she said or done there would not be a hearsay exception applicable  if she's not a company representative there is no as for authentication there was no representation that by mr carroll that he that each of the e mails on each page of each exhibit was a true and accurate representation of what had been what he had received and some of these documents some of these exhibits actually have just partial e mails that can never be authenticated because they're not complete it finally your honour's as to the spoiling ation we we do believe that the court the district court erred and and abused her discretion in not applying the correct standard to determine there was bad faith and then with respect to the evidence or e errors they impacted over three fifths of the documentary evidence fifteen out of twenty six paid exhibits over fifty percent of mr carroll's trial testimony all of the closing almost all of the closing argument in there was no no instruction to the jury putting the evidentially errors or the e mails in the context that they could only corroborate not prove and there was a risk serious risk of jury confusion on that front thank you very much moved to alaska case