the overarching issue in this case your honour's with permeates virtually all aspects of the few order that's on appeal is centers on the district court's decision to award two point three million dollars into attorney's fees based on its in camera view of evidence that nobel bio care was denied access to was not able to analyze and had no ability to meaningfully contest may ask a question is a preliminary one let's say we agree with your argument that that should not have happened there were a number of other issues in this case about should this guy have been discounted two percent or ten percent or twenty percent if we agree with you that the process from the beginning was flawed do we need to get into all of those individual this guy got two percent versus five years it does or does do we should we send the whole thing back and just to redo at the threshold question of the due process violation i agree if you find in my favor in my client's favor on that issue that really is reason alone to reverse the order and remain there are other issues of course and and each of those have separate claims of error that if the court were to address would be helpful guidance if there is a rematch because i you know we don't want to really get those issues without guidance from the court of course i  to some subset of the other issues as judge jones was saying but it doesn't go to things like the multiplier and cross check and various other things when it only goes to how you count the  right correct it only goes to those issues to some of those issues you noted your honor to the extent that the multiplier was based on an adjusted low started derived from this secret evidence process so but your honor correct that the multiplier for example has distinct issues and claims of error that that with a reversal on this we would still have to address but it wouldn't necessarily change the outcome on the multiplier unless you agreed with us where the court changed its mind on those  accurate procedure that would normally be followed assuming that we get if we were to were to agree with your argument well before to go back to the court for you to be given a copy of of the hours you have an opportunity to make any objection to those hours and then the court including the multiplier what the court the law and then proceed from there is that right l on the time sheets you just absurd about the fact that you didn't get a chance to look at the time sheets and make any objections to is that right the answer is yes but with one one further explanation under california law the declarations i counsel submitted were all that were required now the court made an initial finding on that the doors were not sufficient they can carry their burden because the burden rests with the plaintiff on this issue but if the court were were to then say in whether whether time she's whether you have to have time sheets or not have time she saw what was of the declarations are great enough that it's essentially a question of how you prove something and why is that a california question it's a good it's a very good question or it's one that we struggled with quite a bit i lean on the towards of california because it's the process it's the requirements it's the evidence that you need to show to substantiate your attorneys fees so but but it is a very interesting question i can't have a definitive answer on no and that's that was the offer we made in the district court your honor that we said it the court asked us whether we like to see them or with what's your views on this i raised my hand and i said yes i understand counsel has made some privileged objections and we would take redacted versions difference and that's a that's a that's a good question with a complicated an answer and this is what this is about what i'll tell you i can't answer the question because i don't know what's in the time sheets so i can't predict justice gerald certainly did an awful lot of shopping around sure and a point of concern i have your honor is the fact that the court already expressed an opinion that my advocacy won't make a difference i hadn't even argued that point he said i grossly overstated the effect that's a point of concern for me your honor because will it make a difference i don't know why i i mean i am not even i'm suggesting that i i guess harmless really would be inappropriate here but it does strike me that that he probably did going going through everything and maybe chopped off more than you could have thought amanda chopping up well actually and to answer that question the court did go through but the other claims of error that we're making here are not just pure matters of discretion  the court made factual findings as a basis for some of those cut the court made legal applied legal standards that we contend were incorrect so that you can contend anyway you don't need to have the record show that i'm sorry but you don't need the record for that correct but but in terms of whether it's to answer a question of whether sending this back would make a difference only if the court of course would address or other issues so for example on the success factor we conten oh i see which ok well with respect to the time that was submitted again i keep what we know is what the court has identified and what the court has written off for and you know part of the problem here your honor is that the court was required to articulate why it chose specific percentages of chose so for example one of the timekeepers had blocked billing quarter hour increments and vagaries in time entries there was a fifteen percent reduction for that for that time entry now based on the authorities the court cited and based on the authorities that we would argue if given the chance on that issue there would be a reduction of fifteen percent would be appropriate for just one of those billing irregularities alone we don't know why you picked fifteen percent where two thousand hours out of the fifty five fifty five thousand plus hours in the records we're building quarter our increment they got for fifteen percent reduction for multiple billing irregularities we didn't get a say in why it should be more or less but more importantly we don't know why he picked that number that gonzales case from this district from this circuit makes clear that you have to provide more you have to explain why you chose is it possible that sitting down with a mediator from this court might lead to some conclusion here i think going back and going back in circles again i can't i can't say one way or another yawner without guidance we have very good mediators office we could and often do suspend submission of a case while you discuss with them whether mediation might be helpful and i mean here we're talking pure money at this point right and you don't know an awful lot if you don't know everything you want  now i'm wondering whether it would be in everybody's interest to have you talk to media we did talk to the mediators your honour's we spoke to the mediator before before the case was resolved before this was submitted to this court argument just want one thing on so touching on the success factor your honor we contend there were both factual and legal errors in that the court that the success factor is the most critical factor to be considered and that's that circuit law that's california law the court found it merely relevant here so there's an issue of whether apply the correct way to that issue but more importantly the success is gauged by looking at what is the goal of the litigation and which of those goals you achieved that's the standard and what the court did here was look and said well there are six claims here they all arise from a common set of wrongs they're alleging the same violation and therefore the fact that you know only one succeeded doesn't matter he won and the misunderstanding of the standard is evidenced by the citation for the winner out case which accord relied on this is the decision of the circuit and that court found well you had five claims or six claims but you got one hundred percent of the relief you're seeking that's not this case what point if you imagine the claims here as darts that are being thrown at a dart board the court assume that the darts were all kind of taking aim at the same bull's eye when in fact they're taking aim at six different bull's eyes and the reason for that is each of the claims are seeking different forms of relief so for example they wanted a defect declaration claim they wanted damages for strict liability they wanted restitution under the unfair competition act if you don't get the implied indemnity you don't get  the defect declaration which they didn't get here those are goals that are not a cheap but the fact that they were all deriving from the same alleged non disclosure a violation is of no moment that's not the standard the court had to look in see what were you looking to get and what did you end up getting and if you apply the correct standard which we submit was not apply here the analysis will be different i notice i have three minutes i'd like to reserve that if the court has any question thank model i think it's important to see this claim they're making in context first question that might occur to you was why are they feeling well they won first question that occurs i totally agree with that that should happen but the context of this case the standard of review is abuse of discretion or ok now we want to address how that how how that happened that the other side didn't get a chance to look at these records and you know we're not talking about it in consequential you know amount here is kind of a two point three million dollar amount so something else that claimed over four million dollars this testimony or right this judge had to read one hundred forty three pages of their declarations over two hundred pages of their declaration of steel waiting for me i'm still waiting for ok i'm going to get it right now  on top of everything this judge had to deal with if he had to show those time records and he ordered the time records they had submitted them originally that wasn't part of their case he has form he gets the time records if he had shared them with plaintiff's counsel here's the way it would have had to happen right a lot of those records were privilege so the first thing the judge would have had to do is give them back to plaintiff's counsel and say what's privileged give me two copies of what you claim is privileged in the original copy now the judge as a normal shot to do he's got to go through and decide what he thinks is validly privileged redact blackout which privileged and now give them to defense counsel defense counsel goes through what do you think they're going to do they challenge everything they challenge the multiplier they chance they all or they challenge the hourly rate they're going to challenge their privilege so you're going to have briefing that if that's that's what judges do that's what we do on the district court but there's got to be a limit i mean we haven't even gotten to the challenge of the hours yet we're going to litigat maybe you can say it better than i can the alternative giving you the time sheets is to force everybody to go through and decide what is privileged and once not and then for you to advocate on the basis of what's left over and i just don't think that's a good use of anybody's time this is credit good cook the judge could judge fitzgerald have reached the same or similar conclusions if you receive records that already privilege they claim nothing was privileged so he's going to have to do that give her privileged long to defense counsel he's going to have to go through it himself you're going to have a big fight about the privilege before you even get to the hours are right this judge were thirty three page opinion he reviewed hundreds of pages of documents anough is enough i mean how much does a judge have to put into a post judgment motion right and  me enough to get it right without compromising anyone wants constitutional rights that's how much time a judge had it would in your honor when he went through those himself he cut everybody's hours he reduced hours of every attorney he cut the multiplier he cut the the award because of the success rate i mean did enormous amount of work and then on top of that he asked for the time sheets which he didn't have to do and then we go through all the time sheets and cuts everybody i mean how much is a district judge expected to do when it's a post judgment motion it's it's  harmless error and he's got to have some discretion to manage his calendar he's got other cases you know that your district court judge is he's got to have some of deal that ability to have some call because he knew what would happen he said that he knew what would happen if he gave whose time sheets he's on for another twenty thirty forty hours of his own work let alone what's going to happen with these these least worst it was too late to get a master on this he'd already been immersed in he had to do it himself it's not fair to the judge aside from what it did to counsel it's just not fair to the others that would be somewhat helpful to me for you to address is the cross check settlement award is based on the actual claims made well i mean i don't believe there are some law in our court so indicating it makes certainly make some kind of sense in an instance here where there difference between the never he used and the claims actually mean you know that's because nobody can see the future if you don't know how many of these dental implants are going to fail the reasons they're going to fail you just don't know i mean something even if you never use it is that essentially what he did you know that's relevant and that was done here but this is a judge pointed out that you can't place a value on peace of mind of the patients and the dentist knowing that if this thing get this number right or just say it doesn't matter i don't think so i think what the judge did was within the range of his discretion he didn't have to do it at all it's just to check his not the way you find the number so i think the way he did it was proper and motion going on and on and on and at some point i think you can say i don't have to look at these time sheets i'd like to do it kind of as a check like crossing checking against the valuation a settlement  and it's much more efficient if i take a look at this now if you come out of his chambers and said these hours are all fine i think we'd have a problem i think would ever he didn't do that he came out in any not go off every single attorney between two and twenty percent and he did his job i you know i don't have to look any time sheets and you know i'm prepared to  insistent that we have information out there about witnesses we've contacted other possible plans was contact that's highly privileged we don't want the defense counsel to see it and  forgot the time sheets i'm going to base on the declarations and based on those declarations no to no reductions no reductions at all this could end up hurting them but you so you think it is to court judge and look at x party information not shared by the other side and then say i am but i'm not going to rely on my close my eyes to it and make the ruling without letting the other side view in the first place yeah i think if you know we trust this record judges to tell the truth you could time sheets what is reasonable what's not he could easily say i just can't figure out and i'm going to go back to the original declarations and that would be perfectly honest counsel what if  all filed this motion for summary judgment you file us district judge brings in no bills lawyers to talk about the motion for summary judgment then bring you in makes his decision in favor of nobel th it's highly improper no i don't think that's analogous to what happened here i really don't this is all based on paper it was based on paper that the judge wasn't required to look at he could have nordo entirely and what did he do he used to chop their fees down a total of forty five percent and here they are appealing complaining about it you know that we should be appealing cause this as you point out is if we were to remap and it would take a very long time or could take a long time and in the end it's only money sell is there any point in trying again to see there's no point in it i don't see how they're go some point i think the district judge has to say enough you know i got other things to do he said that he said boy if i give those to you we're going to have a fight about the privilege then we're going to have a second fight about the hours  and you know i've put in so much time on this reviewing one hundred forty four pages from them two hundred pages from them there was even a daubert motion challenging an evaluation expert who have ever heard of that on an a you thank you honest i'd like to address a few questions at the at the panel last a few minutes ago just to spurs on to your question of whether this case can go back and the judge can simply decide the issue on the on the basis of declarations the court didn't the court already made a ruling on that the october twenty first twenty thirteen order says the court cannot adequately evaluate whether the number of hours expended on the litigation were reasonable or duplicative based on the declarations this is a issue of did they meet their burden on the basis of their initial submission they didn't that was the finding of the court that was the only read it was in a matter of oh i'm confused i just need a little more support it was an unambiguous finding that they have not carried their burden and while the law doesn't occur for choir the time sheets i'm require i'm giving you a second chance to fix that that's what happened here and justice on your is a very good point as i understand as i understood your question it was well can  go back on the base a declaration and then just kind of unring the bell on the on the time sheets of the court's already looked at and make a decision i don't think that could be a fair process either i mean i have no doubt the judge will do his best but you know we're all human after all and at the end of the day we've seen what we've seen and we know what we know so to kind of just say let's pretend all that didn't happen let's rely on the declarations that i've already found to be inadequate i'm not sure that's going to have that's going to be very productive exercise either  just as bars on your on your question of the cross check say something where judges not just i'm sorry thanks for correction on the issue of the cross check the i think you hit a very important point here which was well the cross it makes a difference to if you if you actually are faithful to what the settlement agreement said if you value it on the basis of what the claim what the settlement is about which is reimbursement for people that actually ask why should you do that i the the the cross check in the other direction tends to matter because if you find out that somebody is getting a usually more than the time they actually spend that would give you pause but what difference does it make that this is would be as even if it would be a small percentage of what was recovered if they actually spent the time in the actually and they can prove it up what difference does it make it's it's important here because the court relied on it as a as another sounding board to show that i got it right if you hadn't done it at all i wouldn't be up here saying well you should have done a cross check i mean i suppose he says well you know what i'm just going to forget and i have to my especially if you can make me go back and do all the course if it doesn't matter but i mean this court in bluetooth has has made it clear that you should you should strongly encouraged that that's not a requirement i agree and if th on the way of overcompensation or for it because it was based because it was a percentage of war i would try to cross check it against a lodestar right all right i'm saying what you're trying to do in the other direction it seems to be to have very little function well