by both parties to assert contract claim under a transfer agreement that existed as of two thousand documented in the year two thousand and four so at the outset of this case it is now i think thirteen years old your pla the last part part of one or more plaintiffs there was standing there was at the time yes or i'm sorry i didn't hear you said that but if i may answer or not answer but direct the to the court to one very important procedural standpoint is a trial lawyer for more than thirty years and as a court district court or otherwise i will tell you that rule fifty rule fifty a and rule fifty b are of critical importance to the trial lawyer into the trial judge fifty a says that if you have like in this case a real party and interest argument you had best raise it there was no fifty a motion associated with the real party in interest it was directed soley to repeat surly to other secure i t could be in the case with respect to the three day later letter motion that was filed under fifty or fifty p as the case may be there was nothing other than a standing argument there was no real any event with respect to what was said to the district judge in that letter motion what was said is there was standing problem there was not at any time in the rule fifty context a real party in interest argument so for that reason for that procedural reason that real party and interest argument from jurisdiction standpoint we would say from our side of the court room has been waived with respect to the if you explain why you regard this as a real party in interest problem as opposed to spending brom yes i mean i think that with respect to the real party in interest the question is solely whether or not there was it a transfer of tort claims at the time of the know the relationships that's what the document said what was raised by virtue of the arguments that were headed below was whether or not there was a real party in interest in the sense could sorry in time could sign tort claims under the terms that agreement and what we had is uncontroverted evidence from both sides of the agreement from the group agreement from the nih group side said  intended to assign everything that i had and we cited i don't brief you got you got some that raised the question about whether the parties can do something notwithstanding the fact that the most reasonable interpretation might be that specified in the in the in the in the agreement and you know i thought about that i mean if you end up with it and agreement that doesn't cover everything can the party still by virtue of or intention and both parties that testified we would submit respectfully i may be just misunderstood and in the record or you can help me understand it better than i would is it clear that the tour would even it happened yet as of november two thousand so developing the product and then the relationship is terminated could the tour the misappropriation have occurred at least in part while science is working on the contract to pay to put responses we don't believe that that the misappropriation appropriate to the document was famous for years might write yes sir and why one of the document necessarily relate back to two thousand it could have it could have been drafted at that point to cover what happened in the meantime i point you knew that there were claims i think i think that it did when it looked language itself said that there was a transfer of all contacts contracts clients and all future revenues and profits arriving arising from said contracts et  this was a at least a questionable position there was a challenge to it and it seems to be odd that you didn't take any any measures to try and and correctness that's that's why we need both parties and we need  specifically find as a matter of law if that's what were crossed at the same time as the proper place if you can get that finding you got the finding after the after after the jury returned its for against you well i property of the plaintiffs who have been yes and in that case the verdict would win a judgment and are in favor of both plaintiffs and then if and i group safest thing from the point is the simming that would be permissible wouldn't that have been the safest thing for the plaintiffs to do at that point to say look on our side of the v if you're echoing the testimony of the  proprietor of an i group there isn't any real problem let's just put it as did the defendants do us wrong and then we'll whack up the money between us after the judgment is paid if there ever is a judgment w been anything wrong with that i think that's why we play the cases we did and that's why and in the district court tell you you can't do that you have to pick a point of one of the other not both the district court decided that she was going to pick scient on and that was her decision you know i don't i don't see that in the record frankly we eat where is it in the record that the district court says you have to go with one point if not two she didn't say that precisely she said that i made reference to record in terms of her decision but if i may turn to one final point that we want to present to this court with respect to what happened below in evidentiary ruling associated with the patent i can say from the scientists and standpoint that we had on our damage case two things that were critical for us to show number one we had to show the amount of losses associated with the software misappropriation on an annual basis and then critically and i would submit to the court respectfully most important but far the most important thing that we had to submit was a damage period in with respect to the damage period that we submitted we submitted the ten year damage period it showed one software alone sixty million dollars of the damages because the patent evidence was eliminated not allowed our expert could not affirmatively support his did ten year damage period by virtue of the patent that had been submitted what what testimony was offered with respect to the  patents what was it that was excluded any reference to the patent at all was excluded but what was proposed the road to be i think i had was found myself unclear about this so when it when i suggest an interpretation and i don't mean to suggest that i think that's really right just i got the impression that what was offered was we just want put the patents into evidence with no expert testimony as to what they mean what they're for why they're good do what matters about them is that wrong there's one addition to what yes and it's an important one we had indicated that the patent evidence should be submitted at a minimum for purposes of establishing our damage period because a legal purpose is one think what was the jury going to see if you had your way that they didn't get to see am i correct that the answer is there would be a bunch of patents that would be put into  evidence and put before the jury or is there going to be some further explanation of their significance as part of the evidentiary records be it was going to be a specific explanation that docket for all nine we had abstracted each of the nine ideas that were misappropriated and found to have been the support for it and there was going to be a could and there was a comparison in that docket that docket intrigue between the nine ideas and the plane unambiguous terms of the patterns themselves you could compare the ideas and see the exact pattern language and make that comparison it did not turn it into a patent case docket for online shows specifically that comparison that we wanted are and what exactly is docket for zero nine and that's an exhibit that's a declaration that's an expert report what is the it's a submission that we made to the court of what the testimony would be in the comparison would be between iran who was going to give a testimony dr ro was going to testify specifically that with respect to the each of these nine ideas there were going to be two forms of testimony one the affirmative support on the damage period critically number one number two it was also going to show that these nine ideas were also utilized in the integrated products and therefore with respect to the integrated products that he was not allowed to testify at all about that each of those nine ideas were embedded in the integrated products so with reason here is that going to come from the patents these are patents for the integrated products it's just i was confused about this to even need to patent testimony to make it the argument claim about the integrated products or that you separate things they are two separate things in the sense that we in terms of what  dr ro could have testified to had him in the lab he would have shown specifically that with respect to each of these integrated products they included the nine different ideas in a page fifty and fifty one of our briefing docket for seventy two this related to liability and why did it come in the liability phase clearing house and and the nine products so the judge made her determination and she made it clear to us that he with the path it was not going to be a patent case in your honor if i may say with respect to our burden of proof on novelty the district judge believe that we were going to have to prove that a different way and we did so with respect to that the ruling of the court we're not here today to talk about that issue we're here today to talk about what happened to us in terms of our damage evidence we were not able to support or respond to that to that two year damage period of computer associates the headline of their exhibit on these damages it's it's  a two seventy one two year head start so with respect to why we're here to argue by contract work here we're talking about the tort damages with respect to to period it would be necessary to determine whether those patents were valid wouldn't well it no i don't think so because the patent the patent has been that the patent existed during the period of time that was the run up to the case of and these are these are their patents is that right yes yes they're not in a position to come in and say they're invalid this that's right this case was tried two years after the damage period expired the damage period that we submitted in exhibit page to sixty nine to two thousand and four to two thousand and thirteen so when we came to court we asked the jury to look at that damage period we said ten years they said no two years and we were not able to explain that they had patent protection during that entire time so this ruling associated with the damages was a shield and a sword for computer associates and it left us frankly in a situation is if were quickly it left us in a situation where the direct examination rao was materially limited and we were materially prejudiced in that we could not defend the core element of our whole lawsuit on damages which is a ten year damage period and then it think about this in final argument we see two year head start being the better of their the headline of their argument there was no ability for me at that time to say a word about the patent protection they'd had for years so we were in a situation on that damage case alone with respect to this patent ruling being in a position where we couldn't support our claim properly and we couldn't defend against the two year damage period so with respect to the verdict the special  which are extremely detailed here the court laid out exactly what the jury had decided in was precise in what she did and you can take a look at this and see with respect to remain and the liability issues associated with the tort have been fully and find the result we're now in a situation of just now almost thirteen years into this a two day demonstrable from getting to the point of a property damage presentation where we have the opportunity to defend to defend our damaged period if you have standing i'm sorry if you have standing if we have stayed here's my question i'm standing again you seven hundred eighty three says she took the position at trial that you you had plenty of time because you were on notice right from the beginning of this case and the trial right up through the roof fifty am so forth of the arguments that were being made by the other side and what your response to that they never at any time in the record shows this raised a real party in interest argument they never they never did standing back to your question standing up in any event you i would have thought you might have said that i didn't know what the outcome would be i did know we we were deprived or we didn't have a written we weren't a real party in interest or didn't have standing until she moved and under those circumstances we needed more time to try and and resolve this problem and maybe it could have been done afterwards this is you know she in other words you you were not on notice not a stat you were not on notice of the outcome you were on notice of an issue but not the outcome agree and with respect to what other side offered because it tended to favor their side frankly of course if i may just one more point on your standing question when when they came back with their through their letter motion three days after their initial real fifty motion it again was the matter of standing with respect they couldn't they said they couldn't ascertain which party had standing to us we look at this is with then as we look at it today standing did  the minimum have standing to bring a contract claim of course it did and this issue was otherwise percolating but standing it was not the question then it isn't the question today as we submit so for that reason we came to this in the court made that the judgments that it did but were where we stand today is we have one further from the court dismissed in a judgment on the contract and with respect to that judgment for we get to that one i want to go back to the patent issue because i don't think you've addressed at all what the district court actually ruled as i understand it so tell me if i'm right about this a year before the trial essentially january two thousand and fifteen  the district court concludes that the patent analysis in the damages report of your expert is a new and complex analysis and opinion regarding liability that had not been the subject of the previous liability report and then the district where it says this is after the close of patent and liability expert discovery this raises a myriad of factual issues not previously addressed including the history of the patent applications where they actually cover  s and discovery is x and x for discovery and liabilities because for two and a half years and therefore she says i'm not going to allow this to go forward tell me why that's an abuse of discretion well i remember those words as if they were spoken yesterday and what that told us specifically or is this what that told us is that with respect to patent and the issue of liability it was not going to be allowed in and that when we got to the point of proving novelty we were not going to be allowed to submit the very patent application ok that's the first part of the answer the second part is with respect to the damage the separate and distinct issue of damages we understood the ruling with what the district judge had told us specifically in the words you just read about liability that did not answer the issue about the tort liability associate with misappropriation an idea and a patent gave computer associates a protection in the marketplace that we had the right to submit to a jury i'm not saying that we necessarily would have won i'm saying that we should have had the right on the most important element of our damages to submit the patent and let the jury decide  was in issue was something called the myers damage report right yes and in two thousand and fifteen that's what she's talking about and she's saying we can't have this because this is introducing new issues into the case on as we read it on the issue of liability and then she indicated further that with respect to the case would proceed portions of his opinion would be allowed and he was allowed to testify his obstruction of the nine ideas that were misappropriated and he did so testify which brings us to that docket for online and the comparison between the nine ideas your honor specifically and what what happened with those nine ideas in terms of the products how they used them in the t produce software as we're talking about and the integrated products so that ruling that you have just read to us was a manifest for what we were going to be allowed to prove or not prove in the last city you're saying that in october of twenty fifteen the judge misconstrued her own prior ruling well yeah i mean i think i'd misconstrue be a little harsh harsh from my standpoint i think that she's the judge and she gets to make decisions as she goes and she gets to make judgments as the case unfolds so the october twenty fifth teen ruling is wrong why exactly in mind of the january ruling well there were two features of it the this is what was an error with respect to her conclusion in our judgment respectfully as to not allowing dr rao to testify as to those integrated products and however that's a separate these great price is a separate story i'm just i'm still focused on the patents ok so your argument is that the existence of the patents is relevant to damages independently of any claim that you might have had so i correct me if i misunderstand this but i think she's saying that you have to establish that the patents include these ideas and that's an issue that would have to be the subject of the lie billeted determination and  specifically that was proved at trial through dr myers ok now with respect to the comparison to the express patent language that we believe the court should have allowed just an objective comparison not a patent infringement type comparison but there was there was clearly with respect to those ideas those ideas weren't bedded in the air is just going to look at the patent and look at the nine ideas and tell us that those nine ideas are covered by the patents and that doesn't require an expert it doesn't require an analysis of liability under the patent and what's covered under the patent any ordinary lay person can look at the terms of a patent and look at some list of ideas and say covered really that's is that the idea in what you're saying wouldn't i wouldn't say i wouldn't say it that way because what we're talking about this is not what the court sees so often in a pet infringement case this is a lawsuit about whether nine fundamental ideas by one of the leading security experts in the world have been misappropriated and in order to get a patent they describe to the patent office what those ideas were that's different and that's distinct from your own or in our view materially distinct from a claim that you would have to make a patent infringement type analysis were these ideas objected lee stated in plain obvious terms just as these ideas exist and the answer to that was none qualified yes and if we were to i would never be here to say to this court or any court that if we are going to compare technologies in an infringement context that we wouldn't be talking about the very thing that you just asked about but the you're saying i guess not the the terminology in the patent explicitly matches the ideas that are held to be a proper is appropriate exactly exactly and that's something that a jury can tell just by looking at it because they can read it in the pan with their own and if we look at exhibit four zero nine that's we're going to see is a verbatim match between the ideas that are put to the jury as misappropriated and what's in the patent and if i may just add one descriptor yes your breasts patent terms if i may ok so that's the comparison that we were asking who you would be comparing the language and two to the nine scientology ideas testified to by dr my there's testified to testified to at the trial and it's in that same docket referenced the docket for zero nine and that is the that is the comparison and if i may say comparison that we were asking to be able to make to submit to the jury on this most important element of our damage ca so that is that is just that is the circumstance and it's a reality we're not here to complain about the january run that was just read or any other these rulings today but to say the district judge told us what was going to happen that's fine our job was then to prove an unfair competition case or not in our misappropriation of idea case that's what she told us we were to do and that's fine and that's what happened and we did in the scale of what happened here is millions tens of millions of dollars because the leading security expert in the one of the leading experts in the world as confirmed by the trial transcript develop this technology and one of the largest software companies in the world took it and this isn't  lawyers argument this is a jury's determination so when we came to this critical question of simply wanting to live by the rules the district judge gave us prove your torque case or not we just wanted to on this critical element of what the largest software company and one of the largest let's keep what you're saying is that in proving your case to establish damages you were trying to show that they patented these ideas and therefore they got issue an important story i think is what judge won't mention which was when they tried to inject this patent theory into the case the case was already ten years old and and liability discovery was close for two years so i more importantly more importantly than that you asked a very good question what was the jury supposed to compare the patents to and what you heard counsel say was nine ideas now what he didn't tell you is that judge seibert ruled i don't know that this is in the record but it is in the transcript his expert can't talk about nine ideas why because the trait the so called idea that they were trying was about a sixty page answer to an interactive to ari because their client destroyed all evidence of his idea so in response to iraq it's very saying what is your idea they come up with this big document which charts and everything but their expert wanted to do was to take this big document with all these ideas the stuff frankly dumb it down to nine very simple concepts that the judge said you can't refer to nine ideas we're talking about one idea it's plaintiff exhibit four twenty six it's in the record a which are like this and therefore you extend them it just for ten years so factually this argument is wrong because what should be compared is the sixty page trade secret document with the p and i would submit respectfully that only an expert can do that and they were two years too late and that's what judge starr broke down and that is not an abuse of discretion i think your judgment why is that an abuse of discretion i don't think that's an abus find another plaintiff correct the situation under most seventy three that's a very good question your honor you know in most of these cases the quote real party interest is not a part of the lawsuit here from day one thirteen years ago they had three plaintiffs all right well the counties changed multiple times but they're always represented by the same counts and the reason that that option was not given is because plaintiff's counsel insisted before we picked a jury after we picked a jury at the close of evidence that they wanted a single plaintiff and they wanted that plaintiff to be scientology no fair they could have said well all of them and see what the jury does or submit two of them and see that they never made that argument and two days before trial in fact they asked us to stipulate that there would be a single plaintiff and that it would be silent on and we said to them well show us some proof that that's the proper plaintiff and that the other entities were merged into that entity they didn't give us anything and in fact what they held back was it's that  nothing to allow them to try and rectify the situation if i could get an answer to let me say i don't understand why as a tactical matter they insisted on scientology but i can tell you which is that  spring necessarily from the cold reading of the transcript is the dynamic in that courtroom in that courtroom there was plaintiff's table which consisted one hundred percent of lawyers there was no representative of any of the three entities it sat at a counsel's table until cross examination when we revealed that he was employed by any of those parties and then the rest of the trial he was in the back of the room so whatever was going on behind the scenes with those three entities there was a tactical decision made that they were going to go with scientology come hell or high water and whatever consequences flow from that is it is it is a result of his lawyers decision and his client's decision and those consequences at the end of the day  they never had standing and frankly i don't think there was any ambiguity in the courtroom in fact when you read the agreement the agreement itself says doesn't mention a word about tort claims or intellectual property rights and understand that part but through a whole case and then all of the side you end up with the standing problem resolved and with the opportunity to correct it and maybe maybe there should have been a maybe maybe there's not much that could've been done but you know i mean it's possible that we would say i'm not suggesting anything goes obviously you know my colleagues think i'm not sure i do either but it's possible to send this back and say you know let's have a reasonable time for them the in a deposition testimony they said one was a successor interest to the other fine but time we get the trial and the claims are whittled down to just a tort claims and they come to us and they say no the contract claim was dismissed before it went to the jury right right so there are only tort can't claims left at that point they have a different choice let's forget about the third one that they could pick one or the other i think it was obvious to everybody in that room who the real who the who that put standing on the cliff and it wasn't science on but force for whatever reasons going on behind the scenes on that side of the v they decided to pick science i know let me just let me just just so i can be specific about the opportunities they had to fix this which is what the trial court found we raise this with in response to their request for a stipulation then before jury selection plaintiff's counsel wanted judge cyber to describe the three plaintiffs as related and we said well i'm not sure they're related because we asked for documents and they did give us a document showing that they're related so that was another opportunity for them and what plaintiffs counsel said is very important this is at eighty to eighty two of the appendix he said we w prove scientology's standing it is our obligation so they were going to and this was this was before a tree selection so they had every intention of writing science on as their planes of all the way through verdict then after all of the evidence was in including this agreement that they didn't get that we stumbled on in cross examining mr exhibit lancets counsel says this after all the evidence is in before the jury gets the case before it goes to summation he says we want one verdict form and have article three standing on the tour claim i mean if you think they develop and correct me if i misunderstand the record the records the record that they developed the product they expected to profit from it if the idea was stolen were they injured and injured in a way that's fairly traceable to your client's alleged and proven conduct bridge that you know they had no science standings and i think this is this is what the district court found and i don't think there was any dispute about this is that the idea was conveyed from and i group allegedly conveyed from and i group to see and then what happens is there was supposedly verbal agreement in two thousand where they say we're transferring contracts contracts and so that is that is what the that's what they're relevant so i don't think they ever plan to i don't think i'd have ever had article three standing back in the time when they when they developed this product they were by the testimony at trial they're working to develop the idea with your client they're intending to profit from it their partners with some relationship with with and i the idea is the idea stolen from them whether or not they would have a marriage or ias claim can prove all the elements of the misappropriation claim they know because the only thing that was ever disclosed to us really in this case is what they answered in this in iraq or to our answer they never gave us source code they never gave us a product because they say when we terminated the relationship they destroyed their invention it no longer exists set it should truth be told i mean there was testimony that they had people science on it people i think science on had people doing things although we're not really sure who even sine time is because we've never and your answers and i'm still much arrive on the answer is there is there no evidence in the record to the effect that after and i group conveys this sixty page idea t computers is that what is happening then is development work by computer is the seeds and by plaintiffs and the people working on the point of side are ton people is that something that there is any evidence to support that first of all that the sixty page it was done in the context of litigation so ok so let me only that's what you're saying you're saying that sixty sixty page documents important we spent years in this case getting them to articulate what this trade secret was or what the idea was multiple iterations then they said give us your product so the magistrate judge that we said give you a product then they wrote the sixty page document with our product projects and now what happened after this theoretical idea was conveyed to somebody at c a a we had nothing to do with the development nothing is no record that we had anything at all to do with the development whatever development was going on was going on with one of these three entities up in canada we and it was never shared with us no demos no sco nothing we had no idea what was going on because they destroyed it all supposedly on the advice of counsel they destroyed it so we've never actually seen what they did and we don't know even know who did it so that's the end of the day it's all these issues that stand in really come back to the agreement that they're relying on which is which is that this thing that transfers contracts contacts and and and clients and let me on that let me try and again pin down this sixty page document which is what in discovery they claim was their idea right and some point that is conveyed or some version of that idea according to them according to the jury is conveyed to computer associates when did that happen and in what format some or more of these fellers from canada comes down and has a meeting and says here's my idea so it it on the trial record it would have happened in like around two thousand years before this was and then it would have would have happened they claim it happened partly verbal e and partly in some powerpoint presentations now this idea by the way is comprised entirely of our products it's an idea to combine our products into a single product and the only thing that and i group owned was some source code that knitted together that we never got to that was the idea so there are these deer or some there are some powerpoint presentations that talk generally about i have this idea to make this this smart security system it's going to used ca's intellectual artificial intelligence product it's going to have the following attributes and then there are some schematics that basically have our products and said we're going to we're going to buy these so that there is there are some power points that were supposedly conveyed to ca on that  have evidence and that says a more precise date in two thousand when the idea was conveyed i'm sorry is the trial record reflect anything other than a more precise date as to circumstance in which the idea is c combining our products into a single product it was i think it may have it was sometime in two thousand i can't tell you exactly  yes so the conversation can take it's like learning how that she cries to me that conversation supposedly occurred in august of two thousand and then the and then the day was entered into in september of two two thousand so actually he can this was another this initial concept that sam time works on the contract and therefore its ideas about the operationalization of the idea might have been something that was appropriated by computer associates your answer to that if i'm not mistaken is whatever psion time did by way of further development of this idea was in fact never conveyed to computer associates and therefore couldn't have been misappropriated by consumer  that's correct and the flipside of that your honor is there are two supposedly infringing products here ca's twenty twenty in a c c the unrebutted testimony a trial from the development teams for those two products was that they developed them independently they never heard of scientology never heard of and i grew up in never heard of project civic and no idea until this lawsuit that those people even existed that's the unrebutted testimony at trial spit the answer is yes we didn't use any of their stuff when they had these general concepts never made it to the design teams you know i'm way over so the one thing i will say your honor is because the district court made a couple of factual findings that i think are significant here one is at trial that the agreement did not transfer any tort claims or intellectual property rights so even if you go outside the four corners of the contract there's that factual finding by the district court which we believe this court respectfully has to give is that correct yes that's correct right and jeff seibert was in the room she saw the testimony she saw the intonation she saw how it was i take it they did and she made a finding that there was an admission that the tort claims were not conveyed and i think that should be a deference the other point i would make is that the district court also found in this is that s p f thirty eight that there was no evidence that the parties ever even discussed a transfer of ip rights or tort claims and that to we i would respectfully suggest should be accorded deference because it's not clearly erroneous just a little puzzled at another thing which is why this essentially factual dispute or maybe it's not a fact and well this dispute about what was conveyed by the contract or the pre written oral agreement why that's not a question for the jury ultimately or shouldn't be a question for the jury i understand that it has to do with standing in a certain sense let me give you a dumbed down first year two words example and see if this helps it's not intellectual property it's a thing it's a snowblower i have a snowblower i lend it to my next door neighbor my next door neighbor refuses to return it i sue him for conversion he says well yeah i never returned it but actually that was never you snowblower we all know that you borrowed it in turn from the neighbor on the other side and it's really is no blower and that's the argument that's made i actually call the next door neighbor as i have no interest in the snowblower once upon a time i sold all my garden tools to lynch for one hundred dollars and they put that into that contract into evidence now essentially what is happening here is the judge then says i'm going to rule as a matter of law that that written contract about the garden tools the snow blower is not as a matter of plain meaning a garden tool and therefore it was never conveyed to lynch and therefore he has no standing to bring this conversion claim and he loses rather than having the jury decide that i lose on my on the merits of my claim about the snowblower because or maybe i win because they credit the testimony of the next door neighbor and my testimony that we had that we meant for this to conveyed to me why why is that not something that should have been put to a tree why does the judge get to take that issue away on the theory that it's a standing question rather than a question of whether i have made out my claim that i had every juncture to maybe have the ask that the jury decide it came and went and they said we want to plant why they wanted that i have no idea but that is what they wanted that's what they got and there are consequences that flow from that and it's their creation not  creation and not the court's creation frankly  i think unless you have questions i will not rest on our papers and i thank you for the time ideas conveyed before or after the nondisclosure agreement record app one hundred and two sixty two through two sixty six confirm specifically before civic disclose the details of the e s s idea to  explained the details of his idea one of the question there are series of questions just asked asked about the time period following the execution of this document and whether at that time scientology existed in the sense of the relationship and it did in the evidence specifically and this is specifically one seventy five to one seventy seven of the appendix testified by his testimony he said he confirmed the companies were effectively combined while he was in ploy by psion time and from two thousand to two thousand and four during which period time to claims that issue in the lawsuit arose that's the evidence now with respect to the trial against the claim of destruction and somehow that we did something destroying evidence that's just not right the agreement that we head mended to repeat mandated that any work product that our company scientology head had to be destroyed at the time that because any accusation of destruction of evidence he just said it doesn't exist in any concrete form and that's why he has to rely on the sixty page into regulatory answer for what the idea is because there isn't anything else i think the argument was the idea could not have been  misappropriated at that time because none of the information science times creating during that period was working was ever communicated to computers says it's clearly said so and i made the  citation i think will be helpful to your perhaps not but in any event one last point if i may well on this issue of the district court we believe the court had the discretion on this record to make the judgment that scientology was the proper plaintiff the only issue ever presented to the judge was standing the judge had no real part in interest argument before by any motion or letter motion and here's what she said and again she sits there every day to make judgments she has to  make and here's what she said i am using so i am talk to scientists and technologists plaintive if i'm reversed on appeal then certainly that might come as a surprise but i think but i think that's the fairest way to proceed opponents respectfully submit isn't that what you had asked her to do it was to have the put the sign time as the plaintiff to the jury we and we asked for one plaintiff and for her to declare as a matter of law based on our record yes that as a matter of law she could and she should declare someone in time as the party and she made clear that she was not doing that that was crystal clear she said this is still subject challenge these guys are raising this issue and it's and that's going to come up after the trial she says that that it expressly in her rulings and i believe if my memory is correct your honor she said it expressly in stating that she would review standing in the verdict form i believe that's what the verdict form also said if i'm correct if i'm if i'm misremembering so be it always and i think she was literal and i think she was correct she had been been editing had raised to her the issue of standing repeatedly including in both fifty motions and she made a ruling post trial on standing we just had counsel say to the court he admits for contract purposes there w standing so with respect to article three and whether or not this court can proceed and should proceed or in any court in relation or claim this court has made clear that so long as you have standing at the outset of the lawsuit your article three problems are result and final point with respect to seventeen a there is a curative part to it and with respect to what happened on the standing ruling in her ruling we thought the issue is resolved and we were wrong thank you for your time we ask that the court remand for further proceedings in connection with the court's judgment thank you very h