[00:00:00] Speaker 04:
And we will move on to our final argument for this morning, Peterson versus Best, case number 24-354.

[00:01:04] Speaker 04:
Yep.

[00:01:05] Speaker 04:
Go ahead and proceed.

[00:01:10] Speaker 04:
Mr. Peterson, not the not the Peterson, the Peterson Jr.

[00:01:21] Speaker 03:
Sorry about that little cotton mouth.

[00:01:24] Speaker 03:
May it please the court, Rydell Peterson, on behalf of the appellant, Randolph Peterson, and you are correct, Your Honor, Peterson Jr.

[00:01:32] Speaker 03:
Randolph Peterson is my father.

[00:01:35] Speaker 03:
So we're here, I mean, you're here, this is your job.

[00:01:44] Speaker 03:
But I'm here because of an error I made.

[00:01:47] Speaker 03:
And hopefully, it's a harmless error.

[00:01:50] Speaker 03:
But that error was counseling my father that he did not need an expert.

[00:01:58] Speaker 03:
He didn't need the expert.

[00:01:58] Speaker 03:
Absolutely.

[00:02:01] Speaker 04:
So the question the question is, I mean, you know, you've argued that you don't need an expert.

[00:02:08] Speaker 04:
Yes.

[00:02:10] Speaker 04:
And I guess the question is, why would that be?

[00:02:13] Speaker 04:
Because this is I mean, this is a key tam law.

[00:02:17] Speaker 04:
Your best argument seems to be, look, this is this is it has nothing really to do with key tam.

[00:02:23] Speaker 04:
This is really about the duty to investigate.

[00:02:27] Speaker 04:
And everyone should know what an attorney's duty to investigate is.

[00:02:31] Speaker 03:
I think that's... You're absolutely right.

[00:02:34] Speaker 03:
And one of the key elements of a Ketam claim or case is the actual receipt of federal funds.

[00:02:40] Speaker 03:
And there was none.

[00:02:42] Speaker 03:
And the attorneys that were representing my father at the time, I mean, originally it was one, and it was one for 10 months.

[00:02:50] Speaker 03:
And that is the defendant that currently remains in this action.

[00:02:56] Speaker 03:
He was the key tam specialist the key tam Guru I mean he held himself out as that and it wasn't my father that went to him It was one of my father's other lawyers that brought my father to this key tam expert your father ever I mean did did Randolph Peterson ever

[00:03:18] Speaker 04:
discuss with Mr. Best the case.

[00:03:23] Speaker 04:
I thought there was some indication that part of the confusion here was that Mr. Peterson had represented that they were receiving federal funds.

[00:03:37] Speaker 03:
Well, his sole belief is that he thought that there was federal funds included in a state of Washington grant.

[00:03:46] Speaker 03:
So there was some commingling.

[00:03:48] Speaker 03:
Right.

[00:03:49] Speaker 03:
And that was it.

[00:03:51] Speaker 04:
Right.

[00:03:51] Speaker 04:
And so the attorney relies on that.

[00:03:55] Speaker 04:
And maybe that was deficient.

[00:03:58] Speaker 04:
Maybe it wasn't.

[00:04:00] Speaker 04:
I guess the question is, and this kind of brings me back to my

[00:04:04] Speaker 04:
First question to you, because on the one hand, you could phrase this as, look, this is just a question about your duty to investigate.

[00:04:11] Speaker 04:
But it seems like you can't separate that from the key tab, because I would imagine that whether they're receiving federal funds is not as easy as it might seem, as this case apparently shows.

[00:04:25] Speaker 03:
Well, they either, I don't, I would have,

[00:04:28] Speaker 03:
I think I have to disagree.

[00:04:29] Speaker 03:
I mean, they either got them or they didn't.

[00:04:32] Speaker 03:
And in this case, they didn't.

[00:04:34] Speaker 03:
And that was clearly pointed out by Judge Rice in 2019.

[00:04:38] Speaker 03:
And he eviscerated us for having brought this claim.

[00:04:42] Speaker 03:
And a key tam claim, as your honors will.

[00:04:48] Speaker 04:
How would he have gone about investigating it?

[00:04:50] Speaker 04:
I mean, I guess there's a, I mean, sometimes you have to operate on information and belief.

[00:04:57] Speaker 04:
And then when you get into the litigation, the facts might turn out a certain way.

[00:05:01] Speaker 03:
Request, FOIA requests?

[00:05:05] Speaker 03:
Port of Benton is a public agency.

[00:05:08] Speaker 03:
They're obligated to produce documents.

[00:05:11] Speaker 03:
I mean, that's just one example, depositions, discovery.

[00:05:19] Speaker 04:
Right.

[00:05:19] Speaker 04:
But depositions and discovery obviously happens after you've already filed the complaint.

[00:05:24] Speaker 04:
And I guess this brings me to my other question, which is Mr. Best at the

[00:05:30] Speaker 04:
as I understand it, maybe you could shed the light on this, comes forward a couple of weeks, I guess, before the final judgment and says, look, you should voluntarily dismiss this because there is a fee shifting statute.

[00:05:46] Speaker 04:
I assume that that's because Mr. Pest started to realize there's probably a problem here.

[00:05:54] Speaker 04:
The facts don't match up with what we thought they were.

[00:05:57] Speaker 04:
Obviously, if Mr. Peterson had taken that advice, he would have avoided the fee shifting if it had been dismissed based on that advice.

[00:06:07] Speaker 03:
And that's his claim.

[00:06:08] Speaker 03:
And there's no evidence of that, OK?

[00:06:10] Speaker 03:
There was one single text message when Mr. Best was on the way out the door that said, and this was after the Port of Benton had filed summary judgment and a whole new set of attorneys had come in to represent my father and his company, hey,

[00:06:28] Speaker 03:
maybe you should look at it not you should or hey there is a fee shifting arrangement might want to consider yeah like like heavily consider it and and and so I mean he was

[00:06:43] Speaker 03:
It was so I'm late to life lawyer.

[00:06:46] Speaker 03:
I've been this is my sixth year of practicing and and to me it was an abomination to watch what took place and and so to me this is about being accountable for a failure and You know, I was Raised to own up to

[00:07:02] Speaker 03:
That you screw up.

[00:07:04] Speaker 03:
Hey, I screwed up whether you're a lawyer or a plumber or whatever just acknowledge it and there was zero acknowledgement.

[00:07:10] Speaker 03:
I mean the other four firms and attorneys

[00:07:14] Speaker 03:
You know, the settlement agreements are confidential, so I can't get into what they say.

[00:07:18] Speaker 03:
But they settled out.

[00:07:21] Speaker 03:
Mr. Best did not.

[00:07:23] Speaker 03:
And Mr. Best, to me, is the primary culprit.

[00:07:26] Speaker 03:
He was the originator of the claims.

[00:07:28] Speaker 03:
And Keaton.

[00:07:29] Speaker 02:
He was the one that whatever Randolph Peterson said to him about the funds, that was where his source came from.

[00:07:43] Speaker 02:
Is that right?

[00:07:45] Speaker 02:
That is, that Best's knowledge, you know, Best did not investigate further.

[00:07:50] Speaker 02:
Sure.

[00:07:50] Speaker 02:
But his knowledge came from what Randolph Peterson told him.

[00:07:54] Speaker 03:
And one of his other attorneys, William Schroeder, he was a business attorney for my dad's company.

[00:08:01] Speaker 03:
And it was Schroeder's that introduced him, introduced my dad to Best.

[00:08:05] Speaker 02:
Okay, so I just want to be clear here because I thought I had the sequence right.

[00:08:10] Speaker 02:
This Schroeder, was he also a representative on this case?

[00:08:15] Speaker 03:
He chose not to become an attorney of record for whatever reason.

[00:08:19] Speaker 02:
So in one sense, he was antecedent, but not as an attorney of record.

[00:08:23] Speaker 02:
Correct.

[00:08:24] Speaker 02:
Is that fair?

[00:08:25] Speaker 02:
Yes.

[00:08:25] Speaker 02:
OK.

[00:08:26] Speaker 02:
And then all of these other attorneys are subsequent to Best's representation.

[00:08:30] Speaker 02:
Yes, absolutely.

[00:08:31] Speaker 03:
And that was what?

[00:08:32] Speaker 03:
Absolutely.

[00:08:34] Speaker 03:
And so Your Honors, just a quick point.

[00:08:36] Speaker 03:
On a Ketam claim, an individual non-attorney can't bring it.

[00:08:40] Speaker 03:
It has to be.

[00:08:42] Speaker 03:
an attorney, because you're essentially representing the United States of America.

[00:08:47] Speaker 03:
And so to me, that just adds that much more credibility or that much more weight for the attorney's role in a key tamp claim.

[00:08:55] Speaker 04:
But it also triggers the general rule that you have to have an expert.

[00:09:02] Speaker 04:
I mean, the only way you don't have to have an expert is if this is just

[00:09:07] Speaker 04:
so common knowledge that anyone would know.

[00:09:11] Speaker 04:
And I just, I mean, what are cases you can point us to to suggest that an action like this is so common knowledge that it fits within the exception under Washington law?

[00:09:20] Speaker 03:
The only cases that I've seen reference is statute of limitations.

[00:09:24] Speaker 03:
So if you miss the statute of limitations, that's within the common knowledge of a lay person

[00:09:30] Speaker 03:
Yeah, hey, that's small practice.

[00:09:33] Speaker 03:
But when I looked at this initially and looking at Judge Rice's order from 2019, one of the key elements is the receipt of federal funds.

[00:09:43] Speaker 03:
And so if you can't prove that or show that, then to me, then that would mean you have no claim.

[00:09:50] Speaker 03:
You have no merit.

[00:09:51] Speaker 03:
And so it should have been withdrawn.

[00:09:52] Speaker 03:
Or it should have, at a minimum, a poster should have been delivered to my dad from the lawyers and said,

[00:10:00] Speaker 03:
No bueno.

[00:10:01] Speaker 03:
This has no merit.

[00:10:02] Speaker 03:
You're going to lose.

[00:10:04] Speaker 03:
And when you lose, you're going to owe the other side's attorney fees.

[00:10:07] Speaker 02:
But the operative language is not about the common knowledge.

[00:10:19] Speaker 02:
I take it those cases say common knowledge is there are statutes of limitations you have to know when to sue.

[00:10:26] Speaker 02:
It's, this is a lawsuit.

[00:10:28] Speaker 02:
There are many elements involved in it.

[00:10:31] Speaker 02:
One of them is very important, but frequently there are ways around them.

[00:10:38] Speaker 02:
Is that within the common knowledge of the jurors in Seattle or in French town, Montana?

[00:10:44] Speaker 03:
I think given the opportunity in explaining the four elements and knowing that if one does not exist, then there is no basis for the claim, I think that would fall within the common knowledge or the wherewithal of a lay person to understand.

[00:10:56] Speaker 02:
Although having to explain it kind of takes it out of common knowledge.

[00:11:00] Speaker 03:
You still would have to, and not to quibble, but you'd have to explain a statute of limitations to a lay person as well.

[00:11:06] Speaker 03:
And here nor there in a way, because if it is harmful, if I made the error and an expert should have been named, then okay, then we get to the sanctions for having not named one.

[00:11:21] Speaker 03:
And the underlying court.

[00:11:24] Speaker 04:
Let me back up because when this was kind of came to light, they file an expert report.

[00:11:30] Speaker 04:
And then it seems like that sort of jog you to say, oh, wow, maybe we should have done the same thing.

[00:11:35] Speaker 04:
You didn't come in and ask for leave or ask for an excuse to file a late expert report.

[00:11:43] Speaker 04:
You kind of said this is a rebuttal expert.

[00:11:45] Speaker 04:
That's the decision you make during the district court.

[00:11:49] Speaker 04:
So why doesn't that resolve?

[00:11:53] Speaker 04:
I mean, assuming that an expert was needed, how do you then get around it?

[00:11:57] Speaker 04:
Because you didn't make the argument below that you should have been excused.

[00:12:02] Speaker 04:
So how do you haven't you forfeited that argument?

[00:12:06] Speaker 03:
Well, I never had the opportunity to.

[00:12:08] Speaker 03:
Of course you did.

[00:12:10] Speaker 04:
The opportunity would have been yours to come in and say, hey, we missed the deadline.

[00:12:15] Speaker 04:
Here's the justification for why we missed it.

[00:12:18] Speaker 04:
But you never did that.

[00:12:20] Speaker 03:
Because I didn't believe we needed one.

[00:12:22] Speaker 03:
And the expert that we named truly was a rebuttal expert.

[00:12:27] Speaker 00:
It's kind of going around in a circle, because the burden was on you, correct, initially.

[00:12:36] Speaker 03:
Provide the expert.

[00:12:37] Speaker 00:
Right.

[00:12:38] Speaker 00:
To prove the case.

[00:12:41] Speaker 03:
Yes.

[00:12:41] Speaker 03:
OK.

[00:12:42] Speaker 00:
So you have the burden to prove the case.

[00:12:45] Speaker 00:
In your mind, you didn't need an expert.

[00:12:48] Speaker 00:
But in fact, all the Washington law, when you talk about malpractice, et cetera, they always require an expert.

[00:12:58] Speaker 00:
So after you miss the deadline,

[00:13:01] Speaker 00:
you re-characterize it as a rebuttal expert but you could have said and what many attorneys would have done is we move or leave to file a late expert report or in the alternative to treat this as a rebuttal expert report and then you would have been on the record to sort of saying well if I was wrong in the first place give me

[00:13:28] Speaker 00:
some mercy.

[00:13:30] Speaker 00:
But I might be right in, it's a rebuttal expert.

[00:13:32] Speaker 00:
And then the judge has these options.

[00:13:34] Speaker 00:
But the way you framed it, you have the burden, not the other side.

[00:13:39] Speaker 00:
So it's somehow you reverse things.

[00:13:42] Speaker 00:
And I think that's where you went kind of further down the rabbit hole.

[00:13:46] Speaker 00:
I guess the question is, why didn't you just ask if this is a late report?

[00:13:54] Speaker 00:
All I want is the court's good leave to let me file it.

[00:14:00] Speaker 03:
Because I didn't think we needed one.

[00:14:02] Speaker 03:
I honestly didn't.

[00:14:04] Speaker 00:
From reading the Washington case law and always requiring an expert report, you didn't think you needed one.

[00:14:12] Speaker 03:
That's not what it says.

[00:14:13] Speaker 03:
It's not mandatory.

[00:14:16] Speaker 03:
It is not.

[00:14:16] Speaker 04:
It pretty much is.

[00:14:17] Speaker 04:
I mean, unless you fail.

[00:14:18] Speaker 04:
A malpractice.

[00:14:19] Speaker 03:
Well, and then that is my failure.

[00:14:22] Speaker 03:
But then to that degree, I don't.

[00:14:26] Speaker 04:
The problem is, OK, if that's a failure, then how do we excuse the failure?

[00:14:31] Speaker 04:
And I think that is Judge McKeon's line of questioning, which is there was a way to sort of fix that, but you didn't fix it below.

[00:14:39] Speaker 04:
So I guess in a way, that's like a second failure.

[00:14:42] Speaker 04:
And now we're like, we're stuck with this case.

[00:14:46] Speaker 03:
But I didn't know it was a failure until we had summary judgment on December 14th, or actually December 19th when Judge Rice entered his order dismissing the case.

[00:14:58] Speaker 03:
And the way that we get there, I mean, Judge Rice took it upon himself to say, hey, he called it dubious and it wasn't.

[00:15:03] Speaker 03:
I truly believe we didn't need an expert.

[00:15:07] Speaker 03:
So he recast on his own accord and there is case law.

[00:15:11] Speaker 03:
That has done the same thing, the Holand v. Jovic case.

[00:15:16] Speaker 03:
But he recast the rebuttal expert as an initial expert.

[00:15:21] Speaker 03:
And I thank him for doing that.

[00:15:24] Speaker 03:
But then he decided that there was no good reason for the late disclosure.

[00:15:29] Speaker 04:
And in doing so, he needed- I mean, the reason for the late disclosure, as much as I'm gathering, is you just didn't think you needed it.

[00:15:37] Speaker 00:
Absolutely.

[00:15:40] Speaker 00:
You rolled the dice wrong on that one, from a legal standpoint, according to the judge.

[00:15:46] Speaker 03:
Yes, but then Judge Rice was supposed to determine whether or not it was either harmless error or, I mean, it's... And I understand the harmless error argument, but if I look at the Washington law, for example, under Yeti,

[00:16:03] Speaker 00:
The burden's on you to show that it's harmless, not the judge doing its suesponte.

[00:16:10] Speaker 03:
You're absolutely right.

[00:16:11] Speaker 03:
But we didn't have the opportunity to show that it was harmless error.

[00:16:16] Speaker 03:
We didn't get to that point.

[00:16:19] Speaker 03:
Judge Rice never said, hey, I'm going to exclude this unless you can show me that it was harmless error.

[00:16:26] Speaker 00:
And did you come back after the ruling and say, this is harmless error?

[00:16:30] Speaker 03:
No.

[00:16:31] Speaker 03:
I appealed to the Ninth Circuit.

[00:16:35] Speaker 00:
There's always, you know, attorneys always say, yeah, the judges never changed their mind, but that's not true.

[00:16:39] Speaker 00:
Usually after you lose, say, on a summary judgment or whatever you see.

[00:16:43] Speaker 00:
The motion for reconsideration?

[00:16:45] Speaker 00:
Motion for reconsideration under Rule 37.

[00:16:48] Speaker 03:
And I read that, and they're highly disfavored, and I didn't want to

[00:16:52] Speaker 00:
Well, you couldn't tick him off anymore.

[00:16:54] Speaker 00:
You already ruled against you, right?

[00:16:57] Speaker 00:
So what's the harm of saying, you know, stop the train?

[00:17:01] Speaker 00:
We just need to explain why this is harmless in this case, because everybody now has the reports.

[00:17:08] Speaker 00:
They can analyze them, and then we can go forward.

[00:17:11] Speaker 03:
Yeah.

[00:17:13] Speaker 03:
I thought that, I mean, I guess I should have done that, absolutely.

[00:17:17] Speaker 03:
It's another learning experience.

[00:17:19] Speaker 03:
But in the dismissal, it also didn't get to the other, the Malone, there's actual factors that were supposed to be followed in dismissing the case.

[00:17:31] Speaker 03:
And we didn't even get there.

[00:17:32] Speaker 03:
We didn't even have the opportunity to address those.

[00:17:35] Speaker 03:
And at the end of the Malone case, which is another failure on my part for not emphasizing it to your honors,

[00:17:43] Speaker 03:
It specifically says, and I'm not going to have the exact right site, but it's under headnote nine, the district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of a less drastic sanction.

[00:18:02] Speaker 03:
That is the law.

[00:18:04] Speaker 04:
So my time is... Yeah, we'll give you some time for... Okay.

[00:18:08] Speaker 03:
Thank you, Your Honour.

[00:18:25] Speaker 01:
Thank you, Your Honors, for hearing this case.

[00:18:26] Speaker 01:
It may please the court.

[00:18:27] Speaker 01:
I'm Mark Louvier from Evidence Craving and Lacky in Spokane.

[00:18:31] Speaker 01:
I'm here representing a defendant in the underlying action, Ryan Best, and his law firm, Best Law PLC.

[00:18:39] Speaker 01:
Two things before we dive into the more salient, robust issues, factual issues that were brought up in appellant's argument number one.

[00:18:48] Speaker 01:
With regard to evidence of the complexity of these claims and where Mr. Best learned of the complexity of those claims,

[00:18:54] Speaker 01:
is his client.

[00:18:55] Speaker 01:
There is actual evidence of that that is in the record.

[00:18:58] Speaker 01:
If you look at SCR 115, that is where the declaration of Ryan Best begins.

[00:19:05] Speaker 01:
Mr. Best outlines the formation of his relationship with his client.

[00:19:09] Speaker 01:
uh... he also outlines the superior knowledge of his client being in the uh... industry the railroad industry for some period of time and mister best explains his adopted belief that there may be some fraud being perpetuated by the uh... defendant entity in the underlying action though is your is your position basically you know that yes there clearly is investigation required but dissatisfied investigation because who better to go to than somebody

[00:19:39] Speaker 01:
you know knows about the industry and tells me that precisely and better yet your honor uh... what mister best did is he filed a key tam lawsuit which automatically turns this case over to the united states government the u.s.

[00:19:51] Speaker 04:
attorney's office which we've we've included this in that was attorneys i mean it went on for four years in the u.s.

[00:19:56] Speaker 04:
attorney's office finally come forward and say i mean they they allowed this to go forward right correct which is really bizarre uh... because

[00:20:05] Speaker 04:
if anyone has knowledge about whether they were receiving federal funds as the U.S.

[00:20:10] Speaker 04:
Attorney's Office.

[00:20:11] Speaker 01:
Correct.

[00:20:11] Speaker 01:
Two points.

[00:20:13] Speaker 01:
Number one, it lends to the complexity of this case to begin with.

[00:20:17] Speaker 01:
But number two, with the U.S.

[00:20:19] Speaker 01:
Attorney's Office, my understanding is they essentially have three options.

[00:20:23] Speaker 01:
They can say, we've looked into this.

[00:20:24] Speaker 01:
We've conducted our investigation.

[00:20:25] Speaker 01:
This is frivolous.

[00:20:27] Speaker 01:
This is meritless.

[00:20:28] Speaker 01:
You are going to dismiss it, or we are going to dismiss it.

[00:20:31] Speaker 01:
Or they can say, gosh, this is a matter that is better handled by our office.

[00:20:36] Speaker 01:
We're going to take it over.

[00:20:37] Speaker 01:
You step aside.

[00:20:38] Speaker 01:
Thank you, whistleblower, for informing us of this.

[00:20:40] Speaker 01:
But we're taking the lead seat now.

[00:20:43] Speaker 01:
The third option they have is what they did in this case, which is sort of a middle ground.

[00:20:47] Speaker 01:
We are going to continue to monitor this case.

[00:20:50] Speaker 01:
We're not taking a position as to whether it has merit or not.

[00:20:53] Speaker 01:
We're not going to dismiss it.

[00:20:54] Speaker 04:
We're not going to take it over.

[00:21:01] Speaker 01:
No, in fact, Your Honor, what they did is the U.S.

[00:21:04] Speaker 01:
Attorney's Office, and this I believe is in the court record, I don't have a site offhand, but what they did is they filed a pleading notifying all of the parties of their position and demanding that the parties keep them informed as to the status of the litigation, which gave them the option to intervene later or take some additional action later should they deem that to be appropriate.

[00:21:24] Speaker 00:
And that's actually from the studies of Keetan.

[00:21:27] Speaker 00:
That's what typically happens.

[00:21:29] Speaker 00:
Correct.

[00:21:29] Speaker 00:
Is that there are a lot of Keetan actions filed and the government often just says hands off.

[00:21:36] Speaker 00:
That then changes the recovery formula, as I understand it.

[00:21:39] Speaker 01:
It does.

[00:21:40] Speaker 00:
But it doesn't change the underlying question of is there government fraud or fraud against the government.

[00:21:46] Speaker 01:
That is correct.

[00:21:47] Speaker 01:
And so in this case, Mr. Best explained in his declaration that he viewed the U.S.

[00:21:52] Speaker 01:
Attorney's Office as being in a superior position and will go into the complexity of the claims and the numerous lawyers that were involved.

[00:21:59] Speaker 04:
Later and I guess the whole point is that may have been right that may have been wrong But you need an expert to say that this is different than hey, I you know, I got hit by somebody else in the parking lot and You know, you've got to go out and look and make sure that the car actually has damage.

[00:22:19] Speaker 04:
I mean that this is more complex

[00:22:22] Speaker 01:
Correct.

[00:22:22] Speaker 01:
And so, ultimately, you have those two factors in terms of the investigation.

[00:22:26] Speaker 01:
You have an individual, Mr. Best, the lawyer who's relying upon the superior expertise of his client in the circumstance, and you have the extra layer of protection, which is the U.S.

[00:22:36] Speaker 01:
Attorney's Office.

[00:22:37] Speaker 04:
Can you walk through at least what's in the record?

[00:22:39] Speaker 04:
I know there might be a dispute.

[00:22:40] Speaker 04:
It sounds like there is about what happened with this conversation.

[00:22:44] Speaker 04:
apparently a couple weeks before it was ultimately dismissed, where Mr. Best said, hey, maybe you should think about avoiding fee shifting by dismissing the case.

[00:22:53] Speaker 01:
Yes, your honor.

[00:22:54] Speaker 01:
And that is that is found at SCR 115.

[00:22:57] Speaker 01:
That is the that's also in the declaration.

[00:23:00] Speaker 01:
That is correct.

[00:23:01] Speaker 01:
Mr. Best explains the conversation that he had with Mr. Peterson, the litigant, as opposed to the lawyer.

[00:23:06] Speaker 01:
Although I think both were involved in those discussions because Mr. Rydell Peterson, who is present today, was a member of the bar towards the latter phases of the litigation.

[00:23:17] Speaker 01:
And before I get too far down this road, one additional factual correction.

[00:23:22] Speaker 01:
Judge Boggs, you had asked about the representation of the parties at different points in time.

[00:23:27] Speaker 01:
And I think there is one notable correction to what counsel told you.

[00:23:31] Speaker 01:
Mr. Best is the attorney that initially filed the lawsuit.

[00:23:35] Speaker 01:
The U.S.

[00:23:36] Speaker 01:
Attorney's Office did investigate for a period of time.

[00:23:39] Speaker 01:
And then a slew of lawyers came in to handle this claim due to the complexity of it and conduct that additional discovery.

[00:23:45] Speaker 01:
The other slight correction that I would make to that is the panel asked about Mr. Schroeder.

[00:23:50] Speaker 01:
Mr. Schroeder's firm was involved.

[00:23:52] Speaker 01:
Mr. Schroeder personally may not have been involved.

[00:23:55] Speaker 01:
He was the business attorney for Mr. Randolph Peterson's corporation.

[00:23:58] Speaker 01:
His firm remained involved.

[00:24:01] Speaker 01:
Overall, I think there were four law firms.

[00:24:03] Speaker 01:
The last correction in terms of the sequence of events, there was one additional law firm on the back end after

[00:24:09] Speaker 01:
all of those law firms withdrew, who filed the fourth amended complaint, which was ultimately dismissed.

[00:24:17] Speaker 01:
And that's when Judge Rice imposed attorney's fees as a sanction against Mr. Peterson.

[00:24:22] Speaker 01:
And so at the end of the day, factually, what occurred is after Mr. Best had already withdrawn from the litigation, Mr. Peterson doubled down and filed yet another complaint, persisted in pursuing these allegations that Mr. Best told him did not have merit.

[00:24:38] Speaker 01:
And so I think it's an important factual clarification in terms of the chronology.

[00:24:45] Speaker 01:
One argument I do want to address is Judge Rice's initial order and with regard to whether he considered the testimony of Judge Harold Clark, retired, who was the proffered expert.

[00:24:58] Speaker 01:
We use the term strike in litigation erroneously.

[00:25:02] Speaker 01:
I'm guilty of it.

[00:25:03] Speaker 01:
I know a lot of trial lawyers are.

[00:25:05] Speaker 01:
And when we say strike, sometimes we mean strike from the record or exclude.

[00:25:10] Speaker 01:
There are a variety of circumstances or ways in which that term is thrown around.

[00:25:15] Speaker 01:
In this case, what Judge Rice meant when he said in the body of his order that he is striking the expert is he's not going to consider the expert in connection with the summary judgment motion.

[00:25:25] Speaker 01:
Judge McEwen, you pointed out that

[00:25:27] Speaker 01:
the distinction between rebuttal experts and primary experts and that's something I'd like to focus on for just a moment because it is undisputed on this appeal that Judge Clark was listed as a rebuttal expert in this case.

[00:25:41] Speaker 01:
That is how they phrased it in their legal briefing.

[00:25:43] Speaker 01:
That is how the disclosure looks and the materials that you were provided.

[00:25:47] Speaker 01:
That's important because Judge Rice is not obliged, Sue Espante in particular, to

[00:25:54] Speaker 04:
reformulate the case for them.

[00:25:56] Speaker 01:
Exactly.

[00:25:57] Speaker 01:
He does not have to do that.

[00:25:58] Speaker 01:
And there is actually one case that is from a district court in Idaho called Ellis versus Corazon.

[00:26:06] Speaker 01:
It's C-O-R-I-Z-O-N incorporated, in which the court specifically deals with that issue.

[00:26:13] Speaker 01:
Does a trial court, in a summary judgment proceeding, have a duty to the non-moving party

[00:26:19] Speaker 01:
to take the rebuttal testimony, rebrand it, and say, OK, we got over the hump.

[00:26:24] Speaker 01:
The plaintiff, you've satisfied your burden on summary judgment.

[00:26:27] Speaker 01:
Ellis says no.

[00:26:28] Speaker 01:
It cites two extra circuit cases that are not binding on this court.

[00:26:35] Speaker 01:
But I think the reasoning is sound, and it's appropriate under these circumstances.

[00:26:39] Speaker 01:
So to say that Judge Rice was required to evaluate the prejudice versus the, I believe they use the term, substantial justification.

[00:26:51] Speaker 04:
What about the sanction, the Malone factors?

[00:26:54] Speaker 04:
I hadn't focused on that so much.

[00:26:58] Speaker 04:
Is there an issue here where exclusion of the expert, which is basically what that was, was tantamount to dismissal and so therefore the Malone factors needed to be considered?

[00:27:11] Speaker 01:
Two things there.

[00:27:12] Speaker 01:
Number one, and I was getting to this just a moment ago, but I lost my train of thought candidly.

[00:27:20] Speaker 01:
What the judge's order did is he said, I'm not going to consider this expert in connection with the summary judgment motion.

[00:27:28] Speaker 01:
but he denied a motion to strike that we filed.

[00:27:31] Speaker 01:
We sought to exclude Judge Clark entirely as a witness, but ultimately, at the end of the order, what he says is he's denying the motion to strike Judge Clark as moot.

[00:27:42] Speaker 01:
So he's leaving for a later day whether Judge Clark could testify as an expert witness from a rebuttal perspective.

[00:27:51] Speaker 01:
However, in footnote two of his order, he does describe and explains that this is rebuttal testimony.

[00:27:57] Speaker 04:
Because the declaration or the... It responds to the initial report.

[00:28:01] Speaker 01:
That is correct, Your Honor.

[00:28:03] Speaker 00:
It kind of begs the Malone question, because was there something less drastic?

[00:28:11] Speaker 00:
Because the reality of excluding the testimony here or not considering it in conjunction with the summary judgment is...

[00:28:20] Speaker 00:
that Peterson loses.

[00:28:22] Speaker 00:
The case is dismissed.

[00:28:23] Speaker 00:
So that's a kind of final judgment there.

[00:28:29] Speaker 00:
And would there have been or should he have considered a less drastic sanction?

[00:28:35] Speaker 00:
Because what he basically says, I'm not going to consider it here.

[00:28:38] Speaker 00:
So I don't even have the fine judge's argument to consider.

[00:28:44] Speaker 00:
And the result is you lose.

[00:28:47] Speaker 00:
So that's pretty drastic.

[00:28:49] Speaker 01:
It's an interesting question in two points that I think bear some discussion.

[00:28:54] Speaker 01:
Number one, the Malone factors were never raised at the trial court level.

[00:28:58] Speaker 01:
The plaintiffs never asked Judge Rice to consider those factors.

[00:29:02] Speaker 01:
There was, as I said, a motion to strike.

[00:29:04] Speaker 04:
And they never asked for less drastic remedy.

[00:29:07] Speaker 01:
You're exactly right, Your Honor.

[00:29:09] Speaker 01:
The other component of that is when you're construing testimony as a rebuttal testimony, I would argue that's not a discovery sanction.

[00:29:18] Speaker 01:
You're taking the plaintiff's word for what they've disclosed.

[00:29:22] Speaker 01:
They have advised that they are offering this expert witness as a rebuttal expert witness, and so you're not saying they violated any rule.

[00:29:31] Speaker 01:
You're saying you're stuck with what your disclosure is.

[00:29:33] Speaker 01:
You've decided that after the plaintiff's case in chief is completed,

[00:29:37] Speaker 01:
after the defense case in chief has been completed that's when your witness could arguably go on the stand and testify if of course that's true rebuttal and so I think that's why we pass through the Malone factors is because it's not just was this I mean your argument on the Malone is basically twofold number one Malone isn't triggered correct number two even if it was it wasn't raised so it's waived

[00:30:02] Speaker 04:
But if we were to say, look, Malone is an obligation of the district court and it did apply here, you don't really have an argument.

[00:30:12] Speaker 04:
I mean, you agree that he didn't consider the Malone factors.

[00:30:15] Speaker 01:
Correct.

[00:30:16] Speaker 01:
Then I would fall back to the position that I've articulated concerning rebuttal testimony and say, pursuant to Ellis and the cases that are cited in Ellis, the court has no obligation to move that testimony over and call it

[00:30:31] Speaker 01:
primary testimony in support of the case in chief.

[00:30:33] Speaker 01:
Judge Rice, I will note concerning that rebuttal issue, footnote two, it's buried in the order.

[00:30:40] Speaker 01:
Oftentimes when we get to appellate courts, the orders are imperfect and so we have to go back and say what was actually done here.

[00:30:48] Speaker 01:
Footnote number two does recognize and does explicitly quote cases in which it says it notes the distinction between rebuttal and primary testimony and whether or not rebuttal testimony

[00:31:00] Speaker 01:
can go on to satisfy the plaintiff's burden of proof in a case where they enter the non-moving party.

[00:31:06] Speaker 01:
One other item that came up in the briefs, and I just wanted to address it.

[00:31:11] Speaker 01:
Council did not bring it up today, but there was some argument in the briefing about interrogatories that were outstanding in advance of the summary judgment proceedings that had not been answered by Mr. Best.

[00:31:23] Speaker 01:
It's an issue that was touched upon, but I would note that pursuant to Federal Rule 56D, sub D, it is the plaintiff's obligation to come forward and say,

[00:31:32] Speaker 01:
Hold on judge put on the brakes.

[00:31:35] Speaker 01:
I don't have enough data to respond to the summary judgment motion or this is the improper Time to do so until we gather more information that was not done in this case And so there's nothing in as much as there's outstanding discovery.

[00:31:48] Speaker 01:
Frankly, there's always outstanding discovery

[00:31:51] Speaker 01:
But the obligation of the non-moving party in that circumstance is to either A, request relief from the court, and B, as a next step, say, this is the outstanding discovery and here's why it would make a difference in the circumstance.

[00:32:05] Speaker 01:
We need to bump the hearing or have resolution of this issue at a later date.

[00:32:10] Speaker 01:
With that, I appreciate the time.

[00:32:12] Speaker 01:
Unless the court has any other questions, that's all I have for you today.

[00:32:16] Speaker 01:
Thank you.

[00:32:16] Speaker 01:
Thank you.

[00:32:17] Speaker 01:
I'll give you two minutes for rebuttal.

[00:32:25] Speaker 03:
So just real quick, it wasn't the complexity of the key TAM issue as to why a whole slew of lawyers came on board as defense counsel had said.

[00:32:35] Speaker 03:
It was because my dad's company came in and 13 new claims came in with my dad's company.

[00:32:41] Speaker 03:
So there was an attorney specifically for civil rights violations, an attorney specifically for breach of contract issues.

[00:32:49] Speaker 03:
So it wasn't about the key tam.

[00:32:50] Speaker 03:
The key tam could have stood on its own with my dad as the sole plaintiff.

[00:32:56] Speaker 03:
The Malone Factors were absolutely addressed.

[00:32:59] Speaker 03:
They were addressed in response to their motion to strike

[00:33:06] Speaker 03:
our expert witness.

[00:33:07] Speaker 03:
The Malone factors were addressed.

[00:33:09] Speaker 03:
The Holden case was addressed.

[00:33:12] Speaker 03:
I didn't put those forth as part of the appellate record, because in reading the Ninth Circuit Appellate Guide, it said not to put forth actual arguments.

[00:33:22] Speaker 03:
That was not frowned upon, but it was not really supposed to do that.

[00:33:30] Speaker 03:
But Malone was addressed.

[00:33:32] Speaker 03:
and Polzin was addressed, and it was very much outlined.

[00:33:38] Speaker 03:
But as defense counsel had said, Judge Rice didn't get to it, didn't get to that motion.

[00:33:45] Speaker 03:
He denied the motion to strike his moot because he'd already made the decision to exclude the expert.

[00:33:51] Speaker 03:
But what Judge Rice did in his order, he did recast the rebuttal expert as an initial expert.

[00:33:56] Speaker 03:
He did that.

[00:33:57] Speaker 03:
He wasn't obligated to do it.

[00:33:58] Speaker 03:
He did do that within his own order.

[00:34:02] Speaker 03:
He did that.

[00:34:02] Speaker 03:
And based on that, he then determined the disclosure was not timely.

[00:34:09] Speaker 03:
But having done that, and they didn't bring it up on appeal.

[00:34:14] Speaker 04:
I'm not sure that that is what we mean by that he recast it.

[00:34:21] Speaker 03:
He did.

[00:34:21] Speaker 03:
I can read it.

[00:34:23] Speaker 04:
I see.

[00:34:24] Speaker 04:
So he said if this is an initial expert, then you're just untimely.

[00:34:29] Speaker 03:
Yes, absolutely.

[00:34:30] Speaker 03:
And there was no good reason.

[00:34:32] Speaker 03:
But to get to that, that's where there was a failure on the part of the court for not dealing with the harmless error or if it was justified.

[00:34:40] Speaker 03:
And then to the court's question on the Malone factors, I mean, there was absolutely a less harsh sanction.

[00:34:50] Speaker 03:
No expert, case is gone.

[00:34:53] Speaker 03:
And that's what happened.

[00:34:55] Speaker 03:
But I think that the court skipped some steps.

[00:34:58] Speaker 00:
What would be the less harsh sanction here?

[00:35:03] Speaker 03:
pay them money for having to have brought to motion uh... don't do that again idiot uh... you know or or i'm just saying i a reprimand or not excluding it in allowing him potentially to still testify but just excluding it from the summary judgment i mean which it would have been still come out a lot less drastic not a lot less drastic uh... but i think that there could have been something there was something less drastic then

[00:35:33] Speaker 03:
dismissing the case over my failure and and that's to me that's what this case is about and it was brought for that reason not one time did Ryan best say hey I screwed up or hey I'm apologize or hey you know anything but oh

[00:35:52] Speaker 04:
least I didn't have to pay the hundred two thousand dollars okay thank you thank you to both counsel for your arguments in the case that concludes this case is now submitted and that concludes the arguments for this morning thank you