[00:00:00] Speaker 03: Without that, welcome. [00:00:01] Speaker 03: Let's go ahead and call the case, which is 22-3132 and across the pill 22-3142 Donahue versus UPS. [00:00:12] Speaker 03: As I said on mute, welcome council. [00:00:14] Speaker 03: I'm glad that we were finally able to get together, I think from November, maybe it was September, but we made it to the oral argument finish line. [00:00:23] Speaker 03: We have 15 minutes per side. [00:00:25] Speaker 03: So council for Mr. Donahue, you may proceed. [00:00:29] Speaker 01: May I please score? [00:00:33] Speaker 01: And could I reserve about three minutes? [00:00:36] Speaker 01: Sure. [00:00:37] Speaker 01: Reserve as much as you want. [00:00:39] Speaker 01: Okay. [00:00:42] Speaker 01: Discovery abuse is far too common in these cases. [00:00:46] Speaker 01: Donahue requested multiple documents and multiple witnesses. [00:00:51] Speaker 01: UPS produced a number of documents, disclosed nine witnesses, said that it produced everything. [00:01:00] Speaker 01: We had no reason to file a motion to compel. [00:01:03] Speaker 01: A little less than a month from trial, documents were produced by UPS, which were a number of emails. [00:01:16] Speaker 01: We went ahead, we went to trial. [00:01:19] Speaker 01: The judge had sanctioned, I call it a meaningless sanction, because the judge said that UPS couldn't use the documents or information affirmatively, but they could testify about them. [00:01:37] Speaker 01: And so then, on the third day of trial, I believe it was, [00:01:45] Speaker 01: Second, yeah, I think it was the third day of trial, a gentleman named Larry Berger got up to testify. [00:01:53] Speaker 01: And we've been asking about a grievance that he had filed and to get a copy of it. [00:01:58] Speaker 01: We've been asking for that for several years. [00:02:01] Speaker 03: Could we roll back a little bit before you get to that point? [00:02:04] Speaker 03: Did you object to going forward with the trial? [00:02:09] Speaker 03: or ask for a continuance for additional discovery. [00:02:12] Speaker 03: What sort of remedy did you ask the district court for to remedy the late discovery? [00:02:20] Speaker 01: We did not ask for a continuance or to not go forward with trial. [00:02:24] Speaker 01: It had been continued several times. [00:02:27] Speaker 01: And so at that point, no, we did not ask for a continuance. [00:02:34] Speaker 04: So what was Judge Crouse to do? [00:02:38] Speaker 04: What did Judge Crouse do? [00:02:42] Speaker 04: Why was he in error to say that I'm not going to give you a continuance? [00:02:51] Speaker 04: You didn't want a continuance. [00:02:53] Speaker 04: He said you can't use them. [00:02:54] Speaker 04: And I believe on May 27th, on pages 38 and 39, [00:03:00] Speaker 04: you complained about the fairness of the sanction saying that you want the defendant to have to give an explanation. [00:03:09] Speaker 04: But now you're not asking us to require Ms. [00:03:13] Speaker 04: Jackson to give an explanation. [00:03:14] Speaker 04: You're saying, 10th Circuit, you need to give us a new trial. [00:03:18] Speaker 04: Well, you didn't ask Judge Kraus to postpone the trial. [00:03:25] Speaker 04: How did you preserve an argument [00:03:28] Speaker 04: that we should conclude that Judge Kraus abused his discretion by giving a sanction, which was really the only sanction that you wanted, other than you wanted the defendant to have to give an explanation. [00:03:49] Speaker 01: We went to trial, and during trial, [00:03:55] Speaker 01: So after we'd already been through the issue and agreed to go to trial, Larry Berger testified. [00:04:02] Speaker 02: Could I just jump in? [00:04:04] Speaker 02: I know you want to get to Mr. Berger. [00:04:06] Speaker 02: Didn't the district court give Mr. Donohue the option to postpone the trial? [00:04:16] Speaker 01: At the motion in the limiting conference, we did discuss continuing the trial. [00:04:23] Speaker 01: And I believe if plaintiff would have asked for it, that the judge would have, I believe he would have continued it. [00:04:33] Speaker 02: Thank you. [00:04:39] Speaker 01: All right. [00:04:40] Speaker 01: So it wasn't until we got in trial that Mr. Berger got up on the witness stand and we'd been asking about this grievance [00:04:54] Speaker 01: which is critical, pretty critical to the case because it's the only document that was in existence that was produced. [00:05:12] Speaker 01: At some point, I said during trial, but prior to trial, no grievance was produced. [00:05:18] Speaker 01: Determination documents, those weren't able to be found, so those weren't produced. [00:05:24] Speaker 01: We found out on the last day of trial that UPS didn't produce its entire American with Disabilities Act policy. [00:05:36] Speaker 01: But the grievance, it discussed what occurred on June 28th when Mr. Donahue suffered his injury and was terminated or disqualified, whatever the [00:05:54] Speaker 01: whatever UPS wants to call it. [00:05:58] Speaker 01: And so at that point, we were already in trial. [00:06:04] Speaker 04: So when Mr. Berger produces the grievance, gets on the witness stand, produces the grievance, you expressed displeasure about that. [00:06:15] Speaker 04: Did you or your co-counsel ask Judge Kraus to grant a new trial or to grant any other sanction [00:06:25] Speaker 04: that he had not already imposed. [00:06:29] Speaker 01: No. [00:06:29] Speaker 01: However, throughout the transcript, co-counsel and I were making objections about discovery issues and the judge wouldn't take them up. [00:06:45] Speaker 04: Well, did you ever say anything or write anything to say [00:06:54] Speaker 04: In light of these discovery abuses, you want Judge Kraus to grant a new trial. [00:06:59] Speaker 04: Judge Kraus has said, you know, we've covered the same ground a hundred times, you know, you've made your objection. [00:07:06] Speaker 04: Did you ever say anything or write anything or complaining that Judge Kraus should have granted a new trial in light of these discovery abuses? [00:07:18] Speaker 01: No, Your Honor, we did not say or write anywhere about a new trial. [00:07:24] Speaker 03: Okay, thank you. [00:07:27] Speaker 03: So does that really leave us then with your primary vehicle for a new trial would be effectively a due process type. [00:07:36] Speaker 03: Argument that the trial was infected with so much air that it denied your. [00:07:41] Speaker 03: Your client has due process rights. [00:07:46] Speaker 01: Yes. [00:07:47] Speaker 01: which I think would still be based on discovery as well as it could bring in the time limits as well that the judge. [00:07:56] Speaker 02: Is you in district court, including your motion from the trial that you make a due process argument. [00:08:04] Speaker 01: We did not say the term due process. [00:08:08] Speaker 04: Do you say anything that would have implicitly alerted Judge Krauss to the substance of a due process argument, saying this violates the Constitution, or something that we can interpret as in effect a due process argument? [00:08:29] Speaker 01: I believe that we said that it was unfair, and I think we may have also discussed manifest injustice. [00:08:39] Speaker 01: The other is that before we really had an opportunity to object, the judge inserted his own objection and said, hey, look, if you want to take this, or he said, hey, look, [00:08:54] Speaker 01: take it up with my friends in Denver, and he says, I realize it's not fair, but it's also not unfair. [00:09:04] Speaker 01: And so he had already, in our opinion, had inserted his opinion and told us, you know, we thought then, you know, take it and ask the 10th Circuit. [00:09:36] Speaker 01: One of the things I haven't talked about is when the last day we were left with 20 minutes to question a witness and that witness changed testimony that had been given through trial. [00:09:55] Speaker 04: So, as I understand your argument near the end of his direct examination, you were surprised because Mr. day reversed himself, but he reversed himself according to your reply brief in your favor. [00:10:12] Speaker 04: You had been arguing that Mr. Donahue had been terminated. [00:10:16] Speaker 04: I think you had argued throughout your briefing that UPS had taken the position that, no, he had not been terminated. [00:10:22] Speaker 04: And then Mr. Day, lo and behold, says near the end of his direct that he had been terminated. [00:10:29] Speaker 04: Well, typically, I'm thinking back to my days in private practice in a trial, if the opposing party gives you a great admission on direct examination, [00:10:42] Speaker 04: I think many good cross examiners would say, the last thing in the world I'm going to do is give Mr. Day an opportunity to clean that up. [00:10:51] Speaker 04: I'm going to get a transcript of that one exchange and blow it up and be talking about that in closing argument. [00:11:02] Speaker 04: What is it that you wanted to ask Mr. Day that he hadn't already told the jury [00:11:12] Speaker 04: in your favor? [00:11:13] Speaker 01: Well, he testified and said that UPS had not opposed or controverted Mr. Donahue's claim for workers' compensation. [00:11:27] Speaker 01: And that's not true. [00:11:30] Speaker 01: And we, in fact, it was a document answered a claim for compensation. [00:11:38] Speaker 01: And it was [00:11:43] Speaker 01: It was attached to the motion lemony. [00:11:46] Speaker 04: Do you have any evidence or did you present any evidence or just as a factual matter, did Mr. Day ever see that document? [00:11:58] Speaker 01: I don't know. [00:11:58] Speaker 01: We didn't get an opportunity. [00:12:00] Speaker 04: Okay. [00:12:00] Speaker 04: So if you had used that to cross-examine the defendant, [00:12:06] Speaker 04: Why would Judge Prowse have let you cross-examine the witness with a document without at least a foundation that he had ever seen that document? [00:12:18] Speaker 04: Well, if he had given you more than 20 minutes, you said, okay, well, I want to use this document that Mr. Day has never seen to cross-examine him about it. [00:12:27] Speaker 04: Wouldn't the natural response be, well, if he had never seen it, of course you can't use that document to cross-examine a witness. [00:12:36] Speaker 01: One of the problems we don't know, but somehow he was able to testify and say that the work comp claim hadn't been opposed. [00:12:47] Speaker 01: And he was pointing to a document that had been produced by UPS, that UPS introduced and said that. [00:12:57] Speaker 01: And then when I got that 20 minutes, a significant amount of it went for objections [00:13:06] Speaker 01: And when we were discussing the time limits the night before, my co-counsel had even asked the judge, well, what happens about objections? [00:13:16] Speaker 01: Because we've had some pretty lengthy objections. [00:13:19] Speaker 01: And he said, we'll get there. [00:13:21] Speaker 01: We'll deal with it when we get there. [00:13:23] Speaker 01: And so we had these objections multiple times. [00:13:29] Speaker 01: We had these objections. [00:13:32] Speaker 01: I went back to the podium. [00:13:35] Speaker 01: And I look and I said, judge, I mean, I feel as an officer of the court, the clock says I'm done. [00:13:41] Speaker 01: I got to say I'm done. [00:13:43] Speaker 01: I said, judge, my time has run out. [00:13:45] Speaker 01: Could I ask two or three more questions? [00:13:48] Speaker 01: And he says, no, you can have one. [00:13:51] Speaker 01: Well, because I had one, I asked one question, but I couldn't ask the second question. [00:14:01] Speaker 01: to insert the answer to the claim for compensation to show that UPS had in fact opposed his work comp claim. [00:14:11] Speaker 01: Because that's set up, what that's set up is the argument to make it sound like UPS did everything they were supposed to. [00:14:20] Speaker 01: But the transcripts replete with examples of witnesses that controvert each other [00:14:28] Speaker 01: within depositions, within trial testimony and so on. [00:14:31] Speaker 01: And I understand that part of that is impeachment. [00:14:35] Speaker 01: But when witnesses are originally saying that they terminate and they disqualified somebody on June 28, and everybody says that they have the authority to do it, you're prepared for trial, you come into trial, and they say, well, sorry, they didn't have the authority to do it. [00:14:54] Speaker 01: And then, oh, by the way, [00:14:56] Speaker 01: disqualification doesn't mean termination. [00:14:59] Speaker 01: And then we look in, and I think it was maybe exhibit 319, actually 313, and Kelly Cisse had sent an email on October 8 saying about William Donahue, he is off the street, so if I dequeue him officially, now he would be terminated. [00:15:23] Speaker 01: And so [00:15:25] Speaker 01: We're chasing our tails, wasting time based upon the whole disqualification termination. [00:15:37] Speaker 01: And like we argued in the brief, we think that there's significant problems, the fact that they did that. [00:15:45] Speaker 03: Yeah, counsel, your time's expired. [00:15:47] Speaker 03: I'll give you a little bit of rebuttal. [00:15:49] Speaker 03: Let's hear from UPS, Ms. [00:15:50] Speaker 03: Jackson. [00:15:52] Speaker 03: Welcome. [00:15:55] Speaker 00: Good morning, Your Honors. [00:15:56] Speaker 00: Claudine Jackson for UPS. [00:15:58] Speaker 00: May I please the court? [00:16:00] Speaker 00: I think the last issue we were talking about was the second issue in Donahue's brief to the court, and that's the amount of time that the court presented. [00:16:13] Speaker 00: And the way that Mr. McKee or Donahue has couched it in his brief is a due process argument, and the [00:16:22] Speaker 00: The plaintiff, Donahue, did not object at trial to the timeframe that the court allowed for the presentation of the evidence or the closing argument under a due process theory. [00:16:35] Speaker 00: And as the court knows, under 10th Circuit case law, he is required to make an explicit statement to the court that it's violating a due process right. [00:16:46] Speaker 00: If he doesn't, then he can, of course, urge plain error. [00:16:51] Speaker 00: that the legal errors plain, that it affected his substantial rights, and that it substantially affected the fairness, integrity, and reputation of the judicial system. [00:17:03] Speaker 00: And he hasn't done that. [00:17:05] Speaker 00: I mean, even if he's done that, Your Honor, in his brief, he hasn't put together, he hasn't articulated how that happened. [00:17:13] Speaker 00: And as the court has in its own local rules and in federal rule of appellate procedure, [00:17:21] Speaker 00: 8A or A8A applicant and appellant is required to articulate what the argument is, point to the record and provide the [00:17:38] Speaker 00: the court with a legal authority to support that argument. [00:17:41] Speaker 00: And he simply hasn't done that in terms of his argument that he didn't have enough time to present his case or his closing argument to the jury. [00:17:51] Speaker 04: In his opening brief on this issue, starting on page 20, he does refer to due process in his heading. [00:18:07] Speaker 04: the last day of due process, but in the body of his brief, and I could be mistaken, it seems to me that he is really focusing, including in his opening paragraph and really throughout, as an abusive process, as a mismanagement of the trial and an improper administration of Federal of Evidence 102. [00:18:35] Speaker 04: And both you and he objected to the time limits. [00:18:42] Speaker 04: And so, as far as an application of Rule 102, do you acknowledge that at least he preserved that part of his argument? [00:18:51] Speaker 00: Yes, Your Honor, although, well, I don't acknowledge that he preserved that at trial, Your Honor. [00:18:58] Speaker 00: I do recognize that although he couched his argument as due process, I did in our response address the due process. [00:19:08] Speaker 00: And I'll touch on why I don't think the court abused its, pardon me, I'll touch on the abuse of discretion and why the trial court did not abuse its discretion. [00:19:23] Speaker 00: The trial court didn't act arbitrarily because it did set forth in numerous places in the record, the factors that it considered and why it implemented then time restrictions. [00:19:35] Speaker 00: First of all, before trial ever began at the pretrial conference, both parties represented that the case could be presented to the jury within four days. [00:19:45] Speaker 00: And I think that was even in the pretrial order that was presented to the trial court. [00:19:50] Speaker 00: The trial court discussed that and the trial court stated that the trial judge was not going to manage each party's time unless it became necessary and that he felt that the parties should be able to manage the time. [00:20:07] Speaker 00: At numerous points in time during the trial, the court expressed concern about the time that the case was taking. [00:20:15] Speaker 00: So on the second to the last day of trial, Your Honor, [00:20:20] Speaker 00: the the judge went through factors of why he was imposing now a time limitation. [00:20:27] Speaker 00: He talked about when the time remaining for the case to be presented to the jury. [00:20:33] Speaker 00: He talked about the pace of the trial. [00:20:35] Speaker 00: He even referenced that Mr. McKee had made a representation to the court that he needed only 45 more minutes to wrap up [00:20:43] Speaker 00: the direct examination of the plaintiff, yet had already used more than twice that amount of time. [00:20:49] Speaker 00: He was still on the direct examination of the plaintiff at that point in time. [00:20:54] Speaker 00: UPS had not even had a chance to cross the plaintiff at that point in time. [00:20:59] Speaker 00: UPS had not had a chance to call the majority of its witnesses. [00:21:04] Speaker 00: And the judge took into account that based on the representations that I made to the court, Your Honor, which [00:21:13] Speaker 00: Donahue did not object to that UPS had already used 598 minutes. [00:21:19] Speaker 00: Pardon me. [00:21:19] Speaker 00: Donahue had already used 598 minutes and UPS had only used 207. [00:21:25] Speaker 04: Well, can I quiz you about that, Ms. [00:21:27] Speaker 04: Jackson? [00:21:28] Speaker 04: You repeated those statistics to us. [00:21:31] Speaker 04: And I don't, you know, if I was Mr. McKee, which I'm not, I don't know why in the world I would have to say I object, not to what you're doing Judge Kraus, but I object to that statement. [00:21:46] Speaker 04: And if I don't object to something that Ms. [00:21:49] Speaker 04: Jackson has said, a factual representation, then I am going to forego my opportunity when she repeats the same factual information to us with nothing in the record to support it, that I have now waived an opportunity to say that her statistics are incorrect. [00:22:12] Speaker 04: You said it to Judge Kraus, you said it to us, but the statements in a brief are not evidence. [00:22:18] Speaker 04: You know, we have a number of cases that say that. [00:22:21] Speaker 04: And it seems to me that you are asking us to rely on a factual representation without any support. [00:22:28] Speaker 04: And the problem is Mr. McKee is not complaining, I don't think, to us about a time limit. [00:22:34] Speaker 04: He's saying it was an unequal time limit. [00:22:39] Speaker 04: You gave the UPS [00:22:41] Speaker 04: four hours and you gave me an hour and a half, what if Judge Kraus had given him 10 minutes and you 7 hours and 30 minutes? [00:22:49] Speaker 04: Would that have been a fair application of Rule 102? [00:22:52] Speaker 00: Well, I think, Your Honor, the way the appellate court is to look at it is whether or not the trial court abuses discretion. [00:23:00] Speaker 00: And I think if the trial court were to set forth [00:23:04] Speaker 00: factors as to why that 10 minutes made sense, then I don't necessarily agree it would have been an abuse of discretion. [00:23:12] Speaker 00: But the fact of the matter remains that Donahue did not object to the time limits and then did not proffer any evidence to show what he would have done with that additional time. [00:23:25] Speaker 00: And I have cited, and in fact, even Donahue has cited many cases in which we have seen the trial courts in controlling [00:23:33] Speaker 00: Their courtroom which they have they have a right to do within their discretion in which they have shortened time periods of trial or limited the amount of cross examination or time given and what the what the 10th circuit has said is, unless, unless. [00:23:52] Speaker 00: the person who's objecting to that proffer some evidence to show what they would have done to show that there's some sort of manifest injustice in limiting the time that then they've waived that argument. [00:24:08] Speaker 00: And I think that's what happened here. [00:24:09] Speaker 00: And the court actually did not necessarily agree with the times I represented to the court. [00:24:16] Speaker 00: What the court said is, based on what I've seen go on, [00:24:21] Speaker 00: An accurate in this 1, this was not the judge's exact words, but essentially like an accurate representation. [00:24:29] Speaker 00: I would also state that there's that that that Donahue relies on the. [00:24:37] Speaker 00: Maloney case in which the court talks about, you know, a trial lawyer has an obligation to control its own time that it uses in the courtroom. [00:24:46] Speaker 00: And throughout the record, you can see that there's multiple times in which Donohue was violating the motion of Lemony, was asking questions that were asked and answered, didn't know how to refresh a witness's memory, and all that ate into time that was allotted during this four-day trial. [00:25:06] Speaker 02: Could I just ask you to clarify your position? [00:25:10] Speaker 02: You've argued that the due process argument has been waived, forfeited, but waived because of lack of a plain air argument. [00:25:22] Speaker 02: Are you saying, and you've made the argument about abuse of discretion, but is abuse of discretion a preserved appellate issue or not? [00:25:33] Speaker 00: I don't believe it is because I don't believe that [00:25:36] Speaker 00: Donahue objected to have preserved that error here at the appellate court. [00:25:45] Speaker 02: Could you respond to counsel's argument based on the testimony of Mr. Day? [00:25:57] Speaker 00: Yes, your honor. [00:25:59] Speaker 00: I think that was addressed in his rulings on [00:26:03] Speaker 00: In terms of the time, the time frame, your honor. [00:26:06] Speaker 00: He was allotted again, your honor, under the rules. [00:26:12] Speaker 00: and under the case law that's been presented, including cases that were presented by Donahue, if he's going to object to the timeframe in which he was allowed to cross-examine Mr. Day, he was obligated to object on the record and proffer what he would have asked, what exhibits he would have shown. [00:26:34] Speaker 00: and he didn't do that. [00:26:35] Speaker 00: In fact, even here today, Your Honor, he said he simply had two questions to ask and he was allowed to ask one and not the other. [00:26:43] Speaker 00: Well, he didn't even, all he had to do then, if he only needed to ask two questions, was all he had to do was proffer that second question to Judge Krauss at the trial court level and he didn't even do that. [00:26:56] Speaker 00: It also doesn't, I mean, going back to the whole plain error, it doesn't show how anything he would have presented through Mr. Day would have made any difference in the outcome of the trial. [00:27:09] Speaker 00: I'll touch just briefly on the pre-trial discovery, unless the court has more questions about the timing. [00:27:18] Speaker 00: But again, Donahue did not preserve his error at trial. [00:27:25] Speaker 00: The documents that were produced late were presented before trial. [00:27:29] Speaker 00: He could have made a motion for sanctions at that point in time. [00:27:33] Speaker 00: He didn't. [00:27:34] Speaker 00: He waited till the motion in Lemony or the pretrial hearing to bring it up after the pretrial hearing. [00:27:41] Speaker 00: He could have made an argument again. [00:27:43] Speaker 00: He didn't. [00:27:44] Speaker 00: When the court addressed what the sanction would be, Donnie Hughes said that they can't use the documents that we get to redact the documents if we want to use them and that we get to that they can't call the witnesses. [00:27:58] Speaker 00: UPS agreed, Your Honor, we're not going to call any of those witnesses. [00:28:02] Speaker 00: the court sanctioned UPS and told UPS we could not use the documents unless they were admitted by plaintiff. [00:28:09] Speaker 00: And then the court rejected the idea because Donahue presented no case law, rejected the idea that you can just redact parts of a document that you're going to use without making any sort of presentation to the court of the authority that would allow that to happen. [00:28:28] Speaker 00: And then during trial, Your Honor, [00:28:31] Speaker 00: Donahue was the one who admitted those documents that they objected to the late production of it. [00:28:39] Speaker 00: UPS did not admit those. [00:28:41] Speaker 00: UPS did not try to call those witnesses. [00:28:43] Speaker 04: Donahue called those. [00:28:47] Speaker 04: You know, I think I may have read his briefing, his opening brief a little differently than you. [00:28:53] Speaker 04: I didn't interpret his opening brief to say I am objecting based on these four documents. [00:28:58] Speaker 04: I think it was just using those documents to illustrate sort of, in his view, the gravity of the misconduct of UPS. [00:29:07] Speaker 00: Well, that's a great point, your honor, because I don't think the record or his briefing is clear as to exactly what documents he's talking about. [00:29:17] Speaker 00: And we pointed that out in it in our briefing that you the 10th circuit. [00:29:23] Speaker 00: you do not have the obligation to go through and try to figure out what part of the record he's talking about, what documents he's talking about. [00:29:32] Speaker 00: You can just decline to consider it. [00:29:34] Speaker 00: But if for some reason you believe that he's articulated what documents he's talking about, my point is he didn't make objections to those documents at trial. [00:29:46] Speaker 00: His third, the third, [00:29:50] Speaker 00: Complaint has to do with the jury instruction. [00:29:53] Speaker 00: I feel that this is pretty well briefed. [00:29:57] Speaker 00: It talks about the timeframe in which in which they had to object. [00:30:03] Speaker 00: I think it's laid out that the parties submitted joint instructions to the court. [00:30:08] Speaker 00: The court then considered it and returned instructions. [00:30:11] Speaker 00: The parties then had an opportunity to provide written objections, which they did. [00:30:17] Speaker 00: And Donahue did that timely with 13 pages of objections. [00:30:21] Speaker 00: The court then had a pre-jury instruction conference where it took into account oral arguments and objections. [00:30:28] Speaker 00: It reserved some of those for the conclusion of the evidence. [00:30:32] Speaker 00: The court then presented a revised and final copy of the jury instructions, and the court then conducted a hearing that allowed the parties to articulate objections that they already hadn't made in writing. [00:30:46] Speaker 00: Once again, Donahue did not preserve any error in [00:30:52] Speaker 00: the format, he did not say we need more time, he didn't attempt to file more objections with the court. [00:30:58] Speaker 02: I see my tongue's out. [00:31:00] Speaker 02: Didn't he raise some of those objections in his motion for new trial? [00:31:06] Speaker 02: And didn't the district judge discuss some of them from the standpoint of plain error? [00:31:17] Speaker 00: In his motion for new trial? [00:31:19] Speaker 02: Yes. [00:31:20] Speaker 00: Yes, your honor. [00:31:21] Speaker 00: And the judge found that there wasn't plain error. [00:31:23] Speaker 00: And I think that we addressed, I think we addressed the four objections. [00:31:30] Speaker 00: I think he brought them up again in the brief that's before this court. [00:31:35] Speaker 00: And we addressed why those errors weren't preserved, that the court had followed the law on those instructions to the jury. [00:31:44] Speaker 00: And that the jury even had found in, [00:31:47] Speaker 00: Donahue's favor on a couple of those. [00:31:49] Speaker 02: Well, I'm raising the question because I'm not sure we see all that often district court itself applying plenty of errors. [00:32:01] Speaker 02: That's usually something we talk about on appeal. [00:32:04] Speaker 02: And yet it happened with this motion for new trial. [00:32:09] Speaker 02: And I'm interested in your addressing what implications that might have for the way we should review the issue now. [00:32:23] Speaker 00: I do not know if I have the best answer for the court on that, except to say that I think even if the court were to look at the plain error argument, I don't think [00:32:36] Speaker 00: that there's a plain legal error. [00:32:39] Speaker 00: I think that the instructions that were put forth in front of the jury were very appropriate. [00:32:46] Speaker 00: I don't believe there's any error there to even get to the analysis for the first element of the court taking a look at whether or not there's plain error. [00:33:00] Speaker 03: All right, counsel, thank you for your take on that interesting issue. [00:33:04] Speaker 03: Mr. McKee, you can have 90 seconds to rebuttal if you'd like. [00:33:08] Speaker 03: Thank you. [00:33:11] Speaker 01: As far as making a proffer, our time was up. [00:33:14] Speaker 01: We were told we were done. [00:33:17] Speaker 01: And I want to point out that the judge, he was irritated with us. [00:33:21] Speaker 01: Me and my co-counseling expressed that throughout trial. [00:33:24] Speaker 01: even with Mr. Day. [00:33:27] Speaker 01: I'd asked a question, the judge, the other side objected. [00:33:30] Speaker 01: Judge told me I hadn't asked a question, I couldn't testify. [00:33:35] Speaker 01: And I'd asked a question, and this was right before, and then the judge tells us about that time. [00:33:42] Speaker 01: And during trial, the judge also apologized to my co-counsel for the way that he treated her. [00:33:51] Speaker 01: And as far as the objections go, [00:33:54] Speaker 01: There's numerous objections throughout the record about discovery. [00:33:58] Speaker 01: And there's numerous times when the judge says, I've heard it a hundred times. [00:34:03] Speaker 01: I don't need to hear it again. [00:34:06] Speaker 01: You know, it's, and I say, I have to make a record. [00:34:08] Speaker 01: He says, it's there. [00:34:09] Speaker 01: Don't worry about it. [00:34:13] Speaker 01: But since I only have 90 seconds and very little left, I just want to point out, we did put plain air under the standard above in the brief. [00:34:23] Speaker 01: And then with respect to the discovery issues that were going on, with the late documents, they were an example. [00:34:33] Speaker 01: But the grievance, it showed up in the middle of trial. [00:34:36] Speaker 01: And in our reply, Donahue lists out all of the objections that defense counsel made, including it hadn't been produced in discovery. [00:34:47] Speaker 01: Then an ADA document, which we caught day in [00:34:51] Speaker 01: and it wasn't their ADA policy. [00:34:54] Speaker 01: The other side objected saying that it hadn't been produced in discovery. [00:34:58] Speaker 01: Termination documents were never produced. [00:35:01] Speaker 01: I'm not exactly sure what we were and how we were to object to what documents hadn't been produced because we don't know. [00:35:08] Speaker 01: We've been assured everything had been produced. [00:35:11] Speaker 01: And as far as, and so it seems like [00:35:15] Speaker 01: This would reward discovery malfeasance. [00:35:18] Speaker 01: It was right before trial. [00:35:20] Speaker 01: It was during trial. [00:35:22] Speaker 01: We asked multiple times and pointed to it. [00:35:26] Speaker 01: And the judge, he didn't want to hear it, said, you've made your record. [00:35:31] Speaker 01: And that's enough. [00:35:33] Speaker 03: Over time, is there any final questions from Judge Backrack or Judge Matheson? [00:35:38] Speaker 03: Any final questions? [00:35:40] Speaker 04: No. [00:35:40] Speaker 04: Thank you. [00:35:41] Speaker 03: Also, thank you for your participation your excuse the case will be submitted and we'll see you in a future argument. [00:35:47] Speaker 03: Thank you. [00:35:49] Speaker 03: Thank you. [00:35:50] Speaker 03: Hold on after counsel.