has not been required under this program that factor being that any fraud in the inducement case the relator was required to prove the factual falsity of individual invoices the council didn't instruction falsity in the invoices so twenty want to add an element to those listed in fourteen but but it says if you find and that one was a damage instruction so they wouldn't have gotten to that where the criteria have to be met and then once that's met then you must identify it so so what happened in this case they didn't find well i didn't find so they wouldn't have gotten to the second part of that particular  case and so it added a fourth element to the other the other ones that instruction fourteen required and that element went to liability and not to just for example you know we we that's a liability instruction it's not a damages instruction that the church still pointed out just a minute ago you look at the instructions together and look at them as a package you don't just there's no way to disentangle all what was in the mind of the jury from whether they norman misled by the law or were misled by the facts and that's should you have another argument oh well that's the that's the on the jury instructions the first problem and i would also point out that my all due respect to my colleague for joaquin martin mr troy he actually misstated a lot of the ruling or challenging is the court's decision to exclude our expert dr balloch and he was very much like the c s i crime scene expert he basically hooper testified along with mr allen who was committed and he was a bit for that reason a very key witness and why the finder stand your argument basically excluding him the court never really consider whether this was substantially justified or harmless right under the under the rules that's correct and as a rule thirty seven c one wisely provides a safety valve because exclusion is such a harsh remedy and that those being those two safety valves being separately and if you find it if you find from reviewing the materials that neither of those was undertaken by the judge and in fact the answer was that  part because like he didn't disclose they were already working on the rebuttal report but he didn't before me analysis so on that basis alone that's reversible error and i may be that the rehearsal would just instruct him to go back and do the substantial justified analysis and the harmless error analysis but we think the record is so clear that the instruction on remand should be to admit mr mr dr malloch testified let me just can i just back you up just a little bit yes  ok so there was a prior appeal in this case yes right yes if and then that appeal arose from a summer grant of summary judgment in favor of lockheed martin on all claims yes judge by as yes that's right yes and prior to that time there had been  a scheduling conference order under rule sixteen is that right yes and it had been can the dates in its schedule or had been continued several times three times yes twice right yes ok and in that schedule or there was a date specific for disclosing experts and exchanging reports and whatnot yes that correct yes correct ok now case summary judgment is granted case goes up on appeal comes back down and understand what happened was that the district court judge made it and i guess it was o'connell connell that did this was to make it clear that when the discovery was reopened it was only reopened on the retaliation claim that right yes that's correct and the dutch fischer's original deadline was just an expert disclosure date without without limitation they were dr mallets report and to you know a reasonable has to mr who has to believe that what he's doing is protected and what the company's doing is wrong but also there is an objective test where the company's doing is wrong and also to show up to be able to show if they're only fired not because he was a bad employee but because he was nosing around where he shouldn't so it doesn't it doesn't relate you know to both claims and that's why it was reasonable well if the hearing before judge fisher but they made it pretty clear rule thirty seven c one provides that as a safety valve here is the classic example of a lack of prejudice because it was six months before trial the parties are already provided time for discovery on the on the underbidding cream this is over with and the judge would not extend the deadlines on the underbidding claim although i'm not sure there was a precise motion to extend this to allow additional doesn't nation of experts under the end of underbidding claim after it came back down from the court of appeal none the less that it get the feeling that this you read dr alex report is that what you did was try to find a way to get around the district court's order well and i guess i had my answer that would mean that kind of that bothers me i'll be honest with you well i think going back to to strike right and the the answer to that your honor is that it's not i mean members luckier the originally moved to dismiss the relation claims the reason we had to have this in two stages is really because lock giving concerning retaliation in particular as opposed to an opinion that he would have given on the issue of underpinning now that hoover's inquiry was objective lee reasonable that because the company was in fact doing underbidding and that rebuts locking to argument he was fired for being a poor employee as opposed to as i said looking into matters that were you know could potentially expose so he's really there for both purposes but as i said i think the the the better argument really for purposes of reverse all we do the book honestly believe it was timely but the better argument is lack of practice and that's a clear safety back to see if he complied with rule sixteen in order to what would be to ensure an order to amend the rule sixteen order to allow the expert testimony late and you have to show established due diligence to good cause right and that's the role that the seven c ones requirement for substantial justification is the flipside of that will sixteen and we made up will sixteen motion we would have made exactly the same arguments we made in the rule thirty seven c one opposition there are substantially justified your here is the rule sixteen doesn't apply because it was kindly under the post premier and scheduling order yes because it related to retaliation played in the three appeal deadline with respect to these cost report cost reports contract required they be kept they were not they were destroyed lockheed misled us or not misled but it gave us input files the turnout couldn't be read and they kept sort of changing their their tune saying that well they couldn't be read they have finally admitted they could be read but they produce different results because the software is now on version five at that aversion to  really because lockheed played games with the underlying circe and input files and we believe they should be able to both profit from playing those games and then keeping out our expert once we were able to get the old software pay a huge licensing fee get old computers sort of circa two thousand and old operating systems to be able to recreate the environment as it existed back at in that time and lockheed martin so we're able to eventually do is again the overriding point is that there was just no prejudice here because lockheed submitted timely in the it's time for about a report timely submitted over a bottle report and then we had agreed separately on a time to depose the experts as well this was still six months before trial so there just was no prejudice even assuming as your honor suggested the disclosure was untimely that the court this court needs to give effect to those two safety that he was the basically the customer represent the customer who received the software at the end of the contract and his testimony was basically that it was we sort of summarized in our brief calling it performance testimony it was incomplete he said or they deliver eighty percent of the product it got paid one hundred percent it didn't work was full of bugs that lack documentation and that this importantly that lack of documentation led to a launch scrub of the spy satellite that prejudice under rule four zero three and in particular that balancing asked to produce a result to show that there is undue prejudiced not just prejudice and it is substantially outweighed by any relevance and it's just deposition the better solution would have been to simply let him testify i have a cautionary instruction the beginning of his testimony or if he if something did come out just the usual trial practice would be to have the other side object in the house for limit instruction at that point or that the so called colorful testimony be stricken but to exclude him just all in one fell swoop giving him the evidentiary getting in effect was it was clearly improper because the  requires that the that the explicit balancing be done on the record so there's something in this court to reveal what case is that the district judge has to make sort of implied findings or explicit statements that they've done some balancing well i thought her case i said if you can tell from the record that they've that they've done the balance in that that's fine at that i think that's a fair statement of the law but that's the problem here you can't tell from the record you look at the record there's two two sentences and  findings well but either either the house record on record as a whole has to show there was an explicit balancing and there's nothing in the record here and i don't think lucky points anything so that there was any any explicit balancing i agree with your honor that that doesn't have to be detailed findings set forth like in an order it can be somewhere else in the record but if this is so thin and exclusion was so broad you know if  it please the court fred rally jr for lockheed martin court corporation you wanted to quickly on the jury instruction issue just to pick up on a question that judge silver asked the first three words of instruction number twenty one which is the instruction that plaintiff is challenging here makes clear that it's not a liability instruction it's a it's a it's an instruction that goes to the number of in forces and therefore the statutory penalties and this is in fact how plaintiff argued it in closing i'd just no that in closing plaintiff's counsel quote said state to the jury quote we ask you to answer the judge's in or auditory requiring you to count the end voices per the judge's instructions that's instruction twenty one so the instruction was argued to the jury in precisely the way the instruction reads and that is an instruction that presupposes a liability finding and simply asked for the counting of of invoices identifying which that asks for the number of invoices so it links up with that i don't think that it could reasonably be read to require in the independently false statement which is what the plaintiff is suggesting given the first three words of the instruction and given the in the jury instructions as a whole because you're on a pointed out jury when you are challenging the way that jury instructions are formulated and the question is whether a particular instruction could have misled the jury you have to look at the instructions as a whole and the liability instructions here and i would point to instruction fourteen and structured eighteen and instruction fic fifteen permitted plaintiff to advance their theory that the underbidding both with respect to the bit and the subsequent contract change proposals rendered the subsequent invoices the invoices that flowed from either the original contract bid or the contract change proposals rendered those  misleading was that the argument that every every claim that was submitted once the contract was approved with was entitled well you know to be included in the damage you were your honor the plaintiff challenge not that wasn't quite the theory at trial the plaintiff challenge not just the original l'oreal bit right the bit at the outset of the contract the plaintiff also asserted that there were false admitted false estimates submitted in support of a specific contract change proposal that followed so depending on which underbidding theory the jury adopted there may be different invoices that flowed from that either the contract change proposal or the original bid that would have been rendered false so plain own theory couldn't have been that every in blunderbuss fashion that all the invoices would be rendered false because it just depended on which underbidding the jury adopted and that's why you see instruction fifteen in the in the jury instructions that that respect all the instructions read as a whole closely tracked the underbidding theory that the plaintiff was advancing at trial now counsel makes an interesting argument and response to my question that you you cannot tell what the jury did because now with respect to instruction number twenty one it could be that the jury didn't get to or that they did find liability but they couldn't find as they would be required to do that it wouldn't they didn't go through and find and then a fight each of the specific invoices so you so what is it is that context with the facts presented two responses jets over first because this is a formulation challenge because the idea is that this instruction could have misled the jury the court does have to consider the instructions  a whole to see whether they could have been misleading the second response is that the first three words of that instruction require the jury to find consistent with the plaintiff's own trial theory that there was underbidding that led to invoices being rendered false or misleading and so given the first three words of the instruction the only reasonable inference from the record given that juries are presumed to read the instructions accurately and to follow the instructions there they're presumed to fall the instructions that they wouldn't have gotten to the latter part of this instruction if they hadn't found live building and the liability theory is one that the plaintiffs controlled and it was based in your body as instruction fourteen accurately describes counsel i want to ask you about the rule thirty seven c one issue yes just with let's assume for argument let's assume that in going through the evidence of when like you produced what it did how it did it sure that we conclude that it was either the delay on plaintiffs part to produce what it was supposed to was substantially justified or harmless and i just assume i'm sure he went oh that's the case is there any case law that suggests that that would justify a remained for a new trial or is it something last you the answer is no it would not call for that many for the reason that we argue in our breeze and that is because any error on that score and we submit that there was no error on that score but on your own as hypothesis the court still wouldn't reverse  that it is harmless excuse me if you conclude that the error was harmless and there were certainly certainly be no no new trial no you're talking a different thing judge just i think the question was directly to rule thirty seven to guess rule thirty seven not if you find a violation of riyad thirty seven there may not yet result in a new trial and that's exactly right i'm trying to trying to get your view yes or on if there are seven c one was violated ye district judge misunderstood she should have considered this that the other and concluded that was either substantially justified or that it was harmless if you in that situation what's the remedy your honor well it's interesting because rule  thirty seven c because of the way it operates and we haven't gotten to that yet but because of the way it operates it's framed in terms of whether the late disclosure was not harmless right whereas the harmless error test asked sort of the converse question identified that you that you couldn't find that the rule thirty seven and that the district court's application of the rule thirty seven default standard here was not harmless i get that you understand but you're basically rejecting hypothetical you're saying it was it was harmless but what i'm trying to understand is if we get all the way through and find thirty seven c y s misapplied here what do we do do we reverse and send it back for new trial or is there something else that the rules permit or require well your honor i think if the court were if the court concluded that the exception applied and that the  admission of that expert report would not have been harm less right i suppose it would follow that the error was prejudicial i suppose that those two things i mean if you look at the language of brunel they're related so if you assume that then what do thirty seven you're looking to see whether what harm you know in responding perhaps to that particular piece of evidence your i think that's right your honor it's a more precise inquiry i think that's right that's why we argued it that way in our briefs in and you say well this is all been if this is all been admitted into evidence you know might have helped plaintiff's case but we can't then look at what the counter evidence would have been because the counter expert's report is not part of the record well you it's not part of the record but that gets to the threshold question of whether there was a rule thirty seven error here and we submit that there was not a rule thirty so i again with respect counsel i'm trying to get your help yes and and put it the basic terms it was a thirty seven c one violation yes what do we do what is that what is the remedy under the circumstances your honor i think that you would as our brief suggest look at a pivot to the harmless error test and that would include not just on harmless error as opposed to harmless one hundred thirty seven c one i think you so so that question that specific question your honor would require you to examine whether if the expert's report had been disclosed whether lockheed when i've been able to take sufficient action to respond to the expert report in advance of trial as judge has noted that's a pretty specific inquiry it's a little different from looking at the rabbit and that's all speculative isn't it because we really don't know lockheed would have done your honor we i think actually contrary to what my friend mr moody suggested it isn't spec of it because the evidence the prejudice that was articulated by lockheed in the district court resonates quite strongly with the prejudice that this court has recognized flows from this kind of late disclosure we went to saying is that lockheed made the argument it would have made no difference if you admitted it would have made no difference since it's harmless there we made that in our briefs on appeal your honor in the district court and i mean did you look at the entire record we did in and and the argument was it would no matter what you still would have been result at trial he argued that in our in our briefs on appeal i would note in response to my friend mr moody's argument that we did argue that the late disclosure of the malick report would result in precisely the kind of burden that this court explained in the yeti case and that it explained in the all your case so this notion that you can wait three years disclose a report well after the close of discovery and then point  to the distance to that trial is often the horizon that there's several months between the late disclosure and trial that is an argument that's been rejected by this court it was rejected in all year where the time from disclosure to trial was actually longer it was eight months compared to the six months that my friend mr moody noted in his initial presentation as the all your court explained the last thing the party or its coun wants in a hotly contested lawsuit is to make last minute preparations and decisions on the run in that are ready does need your own expert to meet mounted yes judge paez i would submit that that only highlights the prejudice from the late disclosure because at the same time we had to commission this rebuttal expert report we're moving to strike the malick report as untimely we were on the eve of summary judgment proceedings on the retaliation claim with trial the follow or six months out as the court explained in yeti when there was a late disclosed expert the other party has to commission expert report prepare that witness for deposition prepare the other side slate disclose preprinted to examine the other side's late disclose expert and then prepare to examine both these witnesses at trial that is power prejudice let me let me focus on the facts as i understand them this case as i understand  i'm i'm in trouble with deeply burdensome this was for you your honor if we had to this gets back to what the court observed in the all your case when you've got a late disclosed expert like this particularly on a subject matter on which discovery had been closed for three years you have to ramp up the machinery addressing that subject matter or that expert and that's exactly what we would have had to do here if the malik report had been allowed if the court would permit i mean and if the court would please i can respond to the substantial justification points that that mr moody made as well because the contention there that lockheed quote played games that contention was made to the district court three times it was made twice in motions before the initial appeal in this case on a motion to extend the summary judgment briefing and a motion to extend discovery both times that contention was rejected the plaintiff advanced the same theory in seeking to oppose exclusion of the ballot report the theory was again rejected and with good reason the native data for the c s m report that the plaintiff claimed he needed was disclosed in july of two thousand and ten well in advance of the discovery cut off as the district court noted the plaintiff could have moved to compel that's why the district court declined to extend the discovery of a deadline to allow the plaintiff  to move to compel the plaintiff had designated witnesses from the company that produced that software the gallery the company back in april in june of two thousand and eight so is we argue in our briefs what the record is if anything a want of diligence on the part of the plane with respect to getting this malick report together i would just like to note that on rule thirty seven that the way that the rule is structured doesn't require the district court to make specific findings before applying that default remedy that the way the rule is framed with the exceptions being substantial justification and a lack of harmlessness those are first of all the have to be shown by the party opposing the sanction and second of all don't need to they don't need to be specifically found by the district court just to apply the default sanction if that were the case the burden would effectively shift to the party seeking to vindicate rule twenty six in invoking the rule thirty seven c remedy and that would be contrary to the rule thirty seven c remedy with into being tended to deal with the situation when your trial you're in rahner i want to correct one thing my colleague said he said that the subsample justification argument was considered and rejected by magistrate walsh that's completely false magistrate wall said the reason for the delay was answer was rather than reading it and responding to it he said it was unknown the reason for the license part of the error he made compounded by a deference shown by joel connell you should just file a motion to extend the rule sixteen disclosure period full stop we've met that deadline well we know it when you read that when you read the discussion that took place at that status conference it's pretty clear though that she says that that the fraudulent discovery substantial justification and are mostly are are it's or it's not a on we don't approve both either way they're one of those safety valves will work and i think the only question is whether the this court does the analysis and instructs the district obviously prefer since the record is so clear you know they they lie they turn in their own report there's just no prejudice here period that ends the matter so we think that record is so clear th is very interesting there in korea by smith so if it goes back for the purpose of determining if the judge of we were to send it back for the purpose of for the judge to do the analysis then can you and defense counsel offer additional evidence to did for the judge to do that analysis to establish that it was it was not harmless on your part and at both the malick report in the report they would have admitted yes of course and then decide whether or not it might have made a difference yes of course thank you thank you governor submitted appreciate it is that intercession for today thank you all very much