that order was a sanction against pointed for essentially misconduct in terms of discovery they did not turn over business which is really the crux of this but that order at three important elements that at trial plaintiffs could not present evidence of actual damages or cuny area losses or any purpose that's the clear language of magistrate judge leans order so you found a motion in limine to solidify the decision of the magistrate judge the hit had been adopted by the district court judge to solidify the fact that none of this evidence would be mad how do we get to the point and that that now you are appealing the admission of that evidence did you object during trial when the evidence was proffered at the first day of that no further objections were required the colloquy that they had on day one of the trial but wasn't that before any evidence was  offered i believe that was at the time of the opening statement correct so i was asking you the district court judge appeared to say let's wait and see how the evidence comes in and if there's specific evidence that you object to as being in validation of the magistrate judge's order object to it then and i'll rule on it so my question was where in the record did trial counsel object to evidence that in his view floud the district court's prior order whereas that in the record the only place in the record where i saw that was on the first day as as i just mentioned  would have been perhaps a better approach to continue to object every day when it came up when he did not go to any specific evidence that's a procedural issue i'm happy with the argument today is that there was no specific objection made to any particular piece of evidence that was proffered i would think that is correct so why don't why doesn't that do in your argument why doesn't that way or forfeit any argument regarding the admission of this well there is case law that would say that number one even the motion limit the preserves the issue for appeal and that too even if it doesn't object when there is that sanction it is still something that this court can look at and say whether or whether or not it is proper so while certainly had to meet objection each time or one time or even one time it certainly would have been clear it does not seem that the case law for just that that precludes this court from looking at that particular issue right but we would then just be limited to reviewing it for planning i'm sorry ye or maybe i'm not even convinced that there's any error at all in terms of the application of nevada law but maybe you can just start right there how did this report get a lot wrong question of nevada law may have some relevance but it's the magistrate judge his order simply said actual damages then we would be here arguing that independent broadcasting and whether the f c c versus cooper from the supreme court but she also made it very clear about evidence of petunia already losses so even if nevada law may say something about actual damages you still have the fact that they were presenting evidence of peculiar early losses regardless and that's not dependent upon that a law well i know you the problem i preclusion order didn't say there precluded for their own misbehavior from offering any evidence of actual damages to safaga under nevada independent order she says defense motion to explode on so is granted to the extent that plaintiffs shall be precluded from claiming or introducing any evidence so quantifiable quantifiable economic harm attributable to the defendant alleged conduct for any purpose right harm or is i just presumed damages i mean it's evidence of quantifiable it's both an arm and you know that a law under the law it could be considered both i think it's arguable but it the time and in the district court could have decided under nevada law whether this was or was not subsumed in the order that's the difficulty i'm having with this issue well i think that's left out a position at anything that is a business loss with a number you know isn't really covered by this and that then there's no statute it's difficult to find plain air to either decision that was made well first of all sort really it's not accident it's not statutory so we have the common law issue we also have f c c versus cooper which is not about a lot supreme court which pretty much flushes that out now it's not moved out of what it is the u s supreme court but in terms of you know  i think there is a bit of common sense in saying what was judge lean trying to preclude what was her purpose and her purpose was look at the history of of this her purpose was they didn't produce their business records therefore their kink they cannot claim business losses because that would be unfair and within that context i think it is quite clear i've got about two minutes left so i'd like to save them for a bottle i think  good morning your honors me please accord robert mitchell on behalf of bradley cowen and co an asset management because of certain bankruptcy filings the only appellant left in this case is the defendant ross hanson who alleges in this appeal he doesn't challenge the liability aspect of the case but the certain damages that were admitted damage of it as it was admitted if the defendant hanson were successful in this appeal it would only affect seventeen million of the thirty eight point three million dollars that was awarded by the jury i'd like to address three areas in my remarks i would like to talk about the controlling of that a law number two i would like to talk about the magistra sanctions order and the district court judges application of that order and number three i would like to address the lack of any effect on the substantive rights of defendant hansen with respect to the disputed evidence that's at issue in this appeal but before i do all that i'd like to sum up in thirty seconds or less what this case is all about this diversity case is governed by the nevada law which was set forth by the nevada supreme court in the kmart decision in one thousand nine hundred three and was later reaffirmed by the nevada supreme court in the bon jovi decision in two thousand and six the law is clear it is not in the u s and the district court got the law correct and applied the court law correctly there was a discovery related order by the magistrate judge ruling that evidence and here's where i defend its counsel's terminology is imprecise what the judge the m precluded was what she defined as quote quantifiable economic harm in the quote and that wasn't to be presented she ruled out actual damages now the trial judge at the beginning of the trial said to all coun order now the defendant's then trial counsel agreed to do that not once but twice he agreed to do that and in all of the items that defendants appellants counsel raises it issue in this appeal the defendant's trial counsel not once objected to the introduction of that evidence and defendants trial counsel did not object to the introduction of that evidence because plaintiff never crossed the line in trying to introduce evidence that violated the magi s preclusion order hence the magistrate's order was not violated number one number two there was no error number three if there was error it was not preserved and therefore the trial court judgment should be affirmed by this court the motion for a new trial and i direct the court to e r ninety three and ninety four which are pages six and seven of the post trial order where the judge dealt with that very issue and what he said in i couldn't articulate it better was he said that look these two paragraphs are like within two or three paragraphs from each other it's more logical and sensible to conclude that the one description where certain elements were described an element was left meant to not be inclusive everything whereas in the later paragraph maybe i think two paragraphs later it listed loss of business is one of the elements reasonable interpretation but that doesn't take away the ambiguity the fact that you have to have the same nevada supreme court thirteen years later reaffirming that ruling in the case where it defines the presumed damages to include all of those same elements in a case somewhat similar to this supreme court's common law interpretation of loss of business is an element of presumed damages consistent with a number of different state court holdings as we cited the case law in our in our brief and of course what happened in this case was that the plaintiff bradley cohen resisted producing personal tax returns and financial statements because he was fearful that the defendant mr hanssen would misuse those and put those up in his websites that he published about the plaintiff and so he resisted that the judge and the magistrate judge indicated that those financial records had to be produced or else the plaintiff would not be able to present evidence of actual damages in because the plaintiffs were unwilling to provide and share those private financial records the magistrate entered the judge brinn are entered the ruling precluding plaintiffs were presenting actual damages evidence a trial and specifically her order as i indicated precluded quantifiable economic damages now counsel is correct that defendants trial counsel filed a motion in limine but that motion in limine be addressed to anticipated pieces of evidence that are not an issue an appeal there was anticipated evidence by investor named jeffrey stern and they were concerned that there would be testimony concerning the amount that he changed his investment as a result of the websites and there was concern in their motion in limine he about a company called olympus ventures yellow sea and what they did or didn't do significantly neither one of those two issues that the motion in limine he talked about came up during the course of trial and converse lee all of the issues raised by defendant appellate counsel in the course of this appeal are items that were not in a motion in limine and moreover they weren't the subject of any objection by defense counsel during trial now federal rule of evidence rule one hundred three as well as the cases that we cited in our brief including the help doggo case the tenth circuit case made clear that because the judge did not give a definitive ruling on his motion in limine he the defendant's counsel was obliged to object when to defend its counsel thought improper evidence was being presented during the course of the trial and the defendant's counsel did not do so so there can be no abuse of discretion in this case because of abus that makes it even more difficult for the defendant to succeed on his plane air argument and you know just to briefly touch upon the issue of plane air that's all frankly the defendant has in this case because of the lack of objection in the record but this court has made abundantly clear that the remedy of plainer fundamental error is only available in the most extraordinary circumstances that's the verd bird versus glacier electorate case it's been to correct a miscarriage of justice meaning that the error seriously impaired the fairness integrity or public reputation of judicial proceedings that's a c b vs city of sonora case so it's clearly not meant to be to for a party or their councils normal duty to preserve a record of error and allow the trial court to try to correct and deal with problems as they arise in the trial which the court could easily have done through either and sustaining an objection or issuing a ruling to to strike the testimony in and that's why plain error is just not a basis in this case for the failure to have objected and moreover as we suggested the failure to object was simply a recognition because that all parties including defense trial counsel were all in the same page as to what the interpretation of the magistrate's order meant and let me know was there any opposition found to the mo them yes there was and what was the nature of the opposition to the motion in the mini it was more or less to the extent that we we wanted to be able to present evidence of presumed damages that would not be quantifiable economic damages going right to the heart of the issue as to what is quantifiable economic damages and let me just briefly discuss that because that made factor into the court's consideration what's very instructive for the court is the sunward case that's the tenth circuit case dealing with almost the same issue where a plaintive decided to forego actual damages and present just presumed damages and what happened in that case was the plaintiff called an accountant to present evidence of specific financial transactions in and what had historically been the case in similar transactions and what the profit margin had been in similar transactions and translated that to a precise dollar amount that was in presented to the jury as what the damages were and they did all of that notwithstanding that there was not supposed to be actual damages evidence in the trial now contrast that with what happened in this case we in no way came close to that i asking about the motion in limine so you are position on the motion in limine was that they requested they requested prohibition was much broader then your interpretation of the magistrate judge's order i that and i think that's why they felt they needed a motion in limine the because the magistrates order was very plain on its face it said no quantifiable economic damages no actual damages to be presented at trial and the defense counsel had their own interpretation of what that might mean could could could plaintiff come in and talk about that certain investors decide no longer to do business with cohen as it management what if a company decided  they were no longer to going to provide insurance to that company i think they were wanting to anticipate and expand what that really meant or see clarification of it and the judge said no i want to hear the evidence as it comes in the decide in the context of how it was presented with or it's appropriate not appropriate and i think that was entirely reasonable for the judge to do under the circumstances and again you should be clear from the record but let me just use the couple minutes i have left to summarize what there are only four pieces of evidence at issue in this case one was there was an amount of money that was testified about that was done that was user spent for work by mr cohen's company to try to depress these defamatory websites on the google search engines and he testified about having spent one hundred to two hundred thousand dollars in trying to suppress those family tory websites that evidence wasn't brought up in the context of damages he was even asked for damages nor could it have been asked for damages it was brought up in the context of how bad these websites bothered mr cohen so much so that he would spend this much money to try to suppress these websites it also went to the malice of the defendants that no matter what mr cohen spent to try to suppress these websites they do as he ought them ization through their in house department were able to keep this on the first page of the website similarly the second piece of evidence that is at issue an appeal is the plaintiff's expert witness fees down ironically that's not evidence that the plaintiffs or the plaintiffs counsel even brought up in a trial that was defendants counsel who brought that up in their questioning of the expert witness for whatever reason they brought it up it wasn't something we asked for could have asked for the third item of evidence was there was reference during mr cohen's testimony of a particular transaction he called it the twenty one million dollars pension plan deal that didn't go through because of the website but in that case there was no effort to to provide testimony or evidence as to what that would have translated to is to in terms of a loss of profit either for the company or for mr cohen and then the fourth item of evidence that they raise on their appeal and i call this kind of the miscellanies or catch all was  model just very briefly in terms of the question of quantifiable losses first we start out with the premise that because defendants had no access to the records any kind of losses be it in the motion and lemony again what would come out at trial wouldn't know because the inability to do discovery does great harm to be able to put o case that's it's almost a given so that particular question was can they bring in this particular material and they did and we just heard that they did and we're talking about presumed losses and millions those are the numbers and we have again a thirty five million dollars judgment the jury was never apprised of the fact that those numbers were inappropriate shouldn't be taken into account and the number in terms of business losses was on apprised of that because your client also didn't object to either the jury to be disinclined at least because the judge are sort of hostile about this as you could read from the colloquy on the first day of do i go against the judge again or do i just go along with it that was a strategic decision i mean i've been a good strategic decision as an appellate attorney i would want the trial attorney to object every moment but again the strategy for a trial