[00:00:01] Speaker 02:
The trial court abused its discretion by excluding aggregate evidence of partial payment of overtime to appellees when the appellees were already aware of this payment because they were the ones

[00:00:30] Speaker 02:
who asked permission to use their credit hours and then went ahead and used them.

[00:00:35] Speaker 02:
The formula for calculating damages in this case was relatively straightforward.

[00:00:40] Speaker 01:
The court?

[00:00:41] Speaker 01:
At least I think I understand all of that.

[00:00:43] Speaker 01:
So can I ask you?

[00:00:45] Speaker 01:
I didn't see in the record, but maybe there was.

[00:00:48] Speaker 01:
When back in starting in 2008, were there discovery requests or

[00:00:58] Speaker 01:
a court-imposed discovery order or obligation that made clear to you that when you were asked to or ordered to supply all of the individual plaintiffs information about what credit hours they earned and what they used, that that was

[00:01:27] Speaker 01:
an obligation that directed you to supply all of the information?

[00:01:35] Speaker 02:
To the best of my recollection, there was a request, a discovery request from plaintiffs for the government which had the availability to access the records of credit hour, accrual, and usage in

[00:01:51] Speaker 02:
convenient digital form where they could aggregate it and provide it for all plaintiffs.

[00:01:56] Speaker 02:
And my recollection was the plaintiffs asked if the government could provide it in that form, and the government did.

[00:02:02] Speaker 01:
Was there some characterization in the request that in terms or substance said all relevant reference?

[00:02:16] Speaker 02:
My recollection, again, was that the

[00:02:19] Speaker 02:
that the plaintiffs asked for.

[00:02:20] Speaker 02:
They were aware that there were different payroll systems that applied to different times because at one point the FAA, the agency had used one kind of payroll system and then they switched to a different one.

[00:02:32] Speaker 02:
And my recollection is that the plaintiffs asked for all of those records.

[00:02:38] Speaker 02:
Yes, for the payroll records as well as records of credit hours.

[00:02:44] Speaker 02:
earned and used by each client.

[00:02:46] Speaker 01:
I guess what I'm getting at is it sure seems from the course of proceedings that when you supplied information up to September 30, 2009 and not further, that you bound yourself to the position that nothing thereafter was relevant.

[00:03:06] Speaker 02:
I would respectfully disagree with that.

[00:03:10] Speaker 02:
the earning and the usage and particularly the usage after October 1, 2009, it happened on a pay period by pay period basis.

[00:03:21] Speaker 02:
So every two weeks plaintiffs were continuing to use credit hours.

[00:03:27] Speaker 02:
So although that meant that it was sort of an evolving picture and there was no

[00:03:35] Speaker 02:
agreement between the parties as to how frequently that usage would be updated.

[00:03:39] Speaker 01:
Do I understand?

[00:03:40] Speaker 01:
I think I'm remembering, right?

[00:03:42] Speaker 01:
So Discovery closed at the end of December 2011.

[00:03:45] Speaker 01:
Yes, it closed at the end of December 2011.

[00:03:47] Speaker 01:
Presumably, I think you don't dispute that you had an obligation to supply, I don't know when you first gave information, I think there was some

[00:03:56] Speaker 01:
There was a motion to stay in 2008, and there was a status report in 2009, which stayed everything except your discovery on this, this very thing.

[00:04:05] Speaker 01:
And then you get to 2011, and you have, up to that point, supplied information that stops on September 30, 2009.

[00:04:15] Speaker 01:
So why, and then there's an expert report, and in fact the only expert, which is the other side's expert, that you can see just from the face of the report is offsetting only stuff from before October 1st, 2009.

[00:04:30] Speaker 01:
And you don't raise any objection to it.

[00:04:34] Speaker 01:
Why is that not a waiver of the position that anything after September 30th, 2009 is relevant?

[00:04:44] Speaker 02:
I would say it is not a waiver.

[00:04:46] Speaker 02:
It was clearly a mistake.

[00:04:49] Speaker 02:
And it was my mistake.

[00:04:52] Speaker 02:
I did not note this, that when we were looking at the expert report through 2012, that we had not supplemented from 2009 to 2012.

[00:05:02] Speaker 03:
And even when you first submitted the materials, you did not reserve the right to supplement as additional materials might become available.

[00:05:14] Speaker 02:
We did not reserve that right, but I don't believe we had an obligation to reserve that right.

[00:05:18] Speaker 02:
I think we had an obligation to supplement periodically when that periodically should be, I don't know.

[00:05:24] Speaker 02:
Clearly, yes, by 2012 it was a mistake not to note and to supplement from 2009 to 2012.

[00:05:32] Speaker 02:
I certainly don't think that results in any kind of waiver with respect to

[00:05:40] Speaker 02:
credit usage after 2012 because clearly that information didn't exist.

[00:05:46] Speaker 02:
So there's nothing that we did or led, I believe, the plaintiffs believe that credit usage after that time didn't count.

[00:05:56] Speaker 02:
In fact, we had people testify.

[00:05:57] Speaker 03:
But the lower court, and this is an abuse of discretion statement.

[00:06:00] Speaker 02:
Yes, it is.

[00:06:01] Speaker 03:
The lower court seemed to believe that you at least led the court to believe.

[00:06:06] Speaker 03:
that this was a self-contained calculation with all the information that was needed by all sides to do that calculation.

[00:06:13] Speaker 03:
And whether or not you think, ultimately, you could have made a different calculation argument, had you produced this information sooner, that's not really the question.

[00:06:23] Speaker 03:
The question is whether the court abused its discretion in saying, we've got to put an end to this litigation.

[00:06:29] Speaker 03:
The government didn't produce this.

[00:06:30] Speaker 03:
The government never made this argument that there were going to be additional offsets.

[00:06:36] Speaker 03:
were done.

[00:06:38] Speaker 02:
But the Court's analysis of whether to exclude the argument turned to some extent, and the Court acknowledged this, that it required or it turned to some extent on whether there was any harm to the appellees from considering this evidence.

[00:06:54] Speaker 02:
So it looked at that five-part test, how important the evidence was and whether there was any harm.

[00:06:59] Speaker 02:
And that is one of the errors that the Court made, because the Court found that the appellees were harmed, but that

[00:07:06] Speaker 02:
finding was based on the idea that the appellees would have needed to have discovery to respond to this information, and yet the Court not only did not explain what discovery the appellees would need, it actually didn't really find that they needed discovery, kind of speculated.

[00:07:26] Speaker 03:
The Court said they'd need more discovery, they'd have to reopen their whole expert report, they'd have to do more examination of how correct these records were.

[00:07:36] Speaker 03:
I mean, in other words, it's a whole nother litigation.

[00:07:39] Speaker 02:
Not really, Your Honor.

[00:07:40] Speaker 02:
And that's what I was going to say, that the Court's holding on Appendix 10, on Page 10 of its opinion, was not that discovery was necessary, but that if, ultimately, a relatively small proportion of discovery was necessary, then it would be likely to prejudice the plaintiffs.

[00:07:58] Speaker 02:
So the Court's decision doesn't even actually find that there would be discovery necessary.

[00:08:04] Speaker 02:
And the appellees failed to demonstrate

[00:08:06] Speaker 02:
what discovery would be necessary, and what issue of the case that discovery would be relevant to.

[00:08:13] Speaker 01:
I guess I'm looking at Appendix Page 1995, which I think is one of the pages whose numbers have not changed.

[00:08:22] Speaker 01:
And Dr. Lanier says, there's something strange about the government's numbers.

[00:08:28] Speaker 01:
Credit hours of 186,000, balance of 100,000, those can't all have been

[00:08:36] Speaker 01:
pre October 1st 2009.

[00:08:38] Speaker 01:
So wouldn't at the minimum there have, wouldn't there have had to have been discovery and litigation about rather a lot about what was going on starting October 1st 2009 and including whether new credit hours were being earned and maybe those were the ones that were being used and not ones from the

[00:09:00] Speaker 01:
the earlier era?

[00:09:02] Speaker 02:
Not really, Your Honor, because the evidence, the records that were provided to the appellees made clear who in the group were exempt and who were non-exempt.

[00:09:13] Speaker 02:
And some plaintiffs who had started off at the beginning of the case as non-exempt became exempt and therefore eligible to earn credit hours.

[00:09:22] Speaker 02:
And that was all evident from the records that we provided to appellees.

[00:09:27] Speaker 02:
So the fact that the court's decision

[00:09:31] Speaker 02:
this court's decision, allowed the FAA to grant credit hours.

[00:09:35] Speaker 02:
So it's not unusual that some appellees, particularly ones that were no longer non-exempt, as evident from the records, can continue to earn credit hours even after 2009.

[00:09:49] Speaker 03:
But it's a pretty complicated analysis.

[00:09:51] Speaker 03:
I mean, what the court said is that having to reopen Discovery and having... We're not talking about five people.

[00:09:58] Speaker 03:
We're talking about numerous, numerous

[00:10:02] Speaker 03:
appellees and all of whom would have to have their records reanalyzed.

[00:10:08] Speaker 03:
And the government had control of that information and never turned it over.

[00:10:13] Speaker 03:
And if once turned over, the plaintiffs would have the obligation, certainly their lawyers would have had the obligation to fly-spec all of that data and to have their expert reanalyze all that data.

[00:10:26] Speaker 02:
The analysis of this data was always a pre push-button issue.

[00:10:31] Speaker 02:
It was just entering the data into a program that the expert already had.

[00:10:34] Speaker 02:
I have to point out that not a single appellee in this case came forward and the council didn't procure a single appellee to come forward and to challenge any of this data to say I wasn't earning or I was earning or I was earning and I shouldn't have been earning.

[00:10:48] Speaker 02:
Not a single one to come forward and proffer a claim or an allegation or an affidavit that might justify

[00:10:55] Speaker 02:
actually needing discovery in terms of reopening things.

[00:10:59] Speaker 03:
So appellees just didn't... Well, they never got to that point because the whole point to the lower court was we shouldn't have to do this at this stage.

[00:11:08] Speaker 02:
Yes, Your Honor, except that that holding, as we would submit, is simply not supported by any actual finding in the record of prejudice.

[00:11:16] Speaker 02:
Because there's really no demonstration as to what discovery would be needed and how that discovery would relate to any issue in this case.

[00:11:26] Speaker 02:
I think I might be into my rebuttal time.

[00:11:27] Speaker 02:
I'm so not used to being an appellant that I'm not really sure.

[00:11:30] Speaker 02:
But I'm going to save some of my time.

[00:11:32] Speaker 04:
We've noted that you are into your rebuttal time, and we'll save it for you.

[00:11:36] Speaker 04:
Thank you.

[00:11:41] Speaker 04:
Mr. McGovern.

[00:11:49] Speaker 00:
Well, in this case, I'm not used to being an appellee.

[00:11:52] Speaker 00:
So may it please the court.

[00:11:55] Speaker 00:
We're coming up on the 12th anniversary of this case, and the case involves unpaid overtime to air traffic controllers that they worked 9, 10, 11, 12, and 13 years ago.

[00:12:05] Speaker 00:
Your Honor, you hit the nail on the head that in December 2015, four years after the close of discovery, the government attempted, and after a trial and an appeal,

[00:12:17] Speaker 00:
The government attempts to inject a new issue into the case, and the new issue would be the accrual and use of credit hours after October 1st, 2009.

[00:12:26] Speaker 00:
That had never been an issue in the case.

[00:12:29] Speaker 00:
We had explored the issue in discovery, and the parties had determined that there had been a new collective bargaining agreement entered on October 1st of 2009, which completely eliminated the credit hour program and practice.

[00:12:42] Speaker 00:
I can go over the voluminous evidence that was in the record.

[00:12:47] Speaker 01:
Well, my recollection, I think I looked at all of your sites.

[00:12:52] Speaker 01:
They were all about no more earning of credits.

[00:12:55] Speaker 01:
Not a one was about no more use of credit.

[00:12:58] Speaker 00:
Your Honor, that's not correct.

[00:13:00] Speaker 00:
In the party's post-trial brief submitted on April 20, 2012, both parties informed the court.

[00:13:09] Speaker 01:
I realize this is a touchy subject here.

[00:13:12] Speaker 01:
What's the joint appendix page?

[00:13:15] Speaker 00:
The joint appendix page is 1555.

[00:13:18] Speaker 00:
And in the government's brief, the government said that the latest collective bargaining agreement with the Air Traffic Controllers Union, the October 1, 2009 agreement, the FAA agreed to omit all prior practices pertaining to credit hours.

[00:13:37] Speaker 00:
All prior practices.

[00:13:39] Speaker 03:
So what's your response to the argument

[00:13:41] Speaker 03:
even if they said that, that some of your clients would have had to have known that they were still getting some credit for their, still using some of their credit hours.

[00:13:51] Speaker 00:
Sure.

[00:13:52] Speaker 00:
I have a threefold argument in response to that.

[00:13:54] Speaker 00:
First of all, due to the court's earlier opinion, the credit hours are only in violation of the law if they were earned when someone had more than 24 credit hours on the book.

[00:14:05] Speaker 00:
The calculation of which credit hours

[00:14:08] Speaker 00:
were illegal and which weren't is extremely complicated.

[00:14:11] Speaker 00:
It's so complicated, the defendant can't do it itself.

[00:14:14] Speaker 00:
It relies on our expert to do that.

[00:14:16] Speaker 00:
So how would you expect an air traffic controller to know that the particular credit hour they're using is a credit hour that violated the law?

[00:14:23] Speaker 00:
Second of all, under 5 USC section 6130, flexible work schedules where there's a union are required to be negotiated with the union.

[00:14:34] Speaker 00:
And credit hours are not supposed to be

[00:14:37] Speaker 00:
used with respect to individuals who are in the bargaining unit without the union's approval.

[00:14:42] Speaker 00:
The 2009 agreement completely eliminated that.

[00:14:45] Speaker 00:
So one of the things we want to do discovery on

[00:14:48] Speaker 00:
is under what circumstances were these credit hours used since the union is no longer policing their use?

[00:14:54] Speaker 00:
Was it a nefarious situation where people were told, use the credit hours instead of your leave?

[00:15:00] Speaker 00:
How are they accruing credit hours, as Your Honor pointed out?

[00:15:03] Speaker 00:
Our experts personally review that showed that people were earning credit hours, accumulating them, as well as there's one individual, Scott Moore, Appendix 1995,

[00:15:17] Speaker 00:
who had 34 credit hours, which of course would exceed the 24 credit hour limit.

[00:15:23] Speaker 00:
So there's some sort of nefarious activities going on potentially that we would want to look into.

[00:15:29] Speaker 00:
The other point with respect to the employees knowing that they're using the credit hours, we need to know in what position they were in when they used the credit hours or when they accrued the credit hours.

[00:15:44] Speaker 00:
Were they in a properly FLSA exempt position or not?

[00:15:47] Speaker 00:
These are all things that we didn't need to explore when the parties, because we didn't have, everyone had agreed that the credit hour program had ceased October 1st, 2009.

[00:15:58] Speaker 00:
That, there shouldn't be any doubt about that based on the record, including Judge Hewitt, November 21st, 2011, instructed the parties to get ready for trial and had them do a number of things.

[00:16:14] Speaker 00:
And the parties' joint stipulation of facts

[00:16:16] Speaker 00:
It's a joint stipulation of facts submitted on December 27th.

[00:16:21] Speaker 00:
The party said the FAA's data provided to plaintiffs expert Dr. Louis Lanier and concludes information for each plaintiff for the time period for May 2nd, 2004 to October 1st, 2009, including records of balances such as compensatory and credit hours by pay period.

[00:16:39] Speaker 00:
Controllers expert Dr. Lanier's calculations were based on data the government provided of credit hour usage and accumulation through October 1st, 2009.

[00:16:50] Speaker 00:
And at the trial, Mr. Staley testified, and Mr. Staley was the government's 30B6 witness on controllers' pay.

[00:17:01] Speaker 00:
He's the expert for the government on the pay practices and policies.

[00:17:04] Speaker 00:
And he testified that the credit hour program

[00:17:07] Speaker 00:
had discontinued effective October 1, 2009.

[00:17:11] Speaker 00:
And I already cited the post-trial brief by the government.

[00:17:16] Speaker 00:
So the prejudice that the plaintiffs will suffer here if the case goes forward is delay and needless expense, leading to years of discovery and another round of litigation.

[00:17:29] Speaker 00:
The needless expense

[00:17:31] Speaker 00:
is, of course, Dr. Lanier will have to redo calculations.

[00:17:35] Speaker 00:
But in addition, we're going to have to retake rule 30b6 depositions on how on earth there was a credit hours program, in effect, where people were accruing and using credit hours after October 1, 2009, when the union disavowed the program entirely.

[00:17:54] Speaker 00:
In addition, we'll have to have a trial on that.

[00:17:57] Speaker 01:
Is that an issue about

[00:17:59] Speaker 01:
lawfulness or what?

[00:18:01] Speaker 00:
Yeah, it's an issue under 5 U.S.C.

[00:18:06] Speaker 00:
Section 6130.

[00:18:07] Speaker 00:
The credit hours flexible work schedules have to be negotiated with the union.

[00:18:12] Speaker 00:
The record at the trial was that the credit hour program had ceased.

[00:18:18] Speaker 00:
That's undisputed.

[00:18:19] Speaker 00:
So what was going on that there were credit hours

[00:18:22] Speaker 00:
without a union agreement to do so.

[00:18:24] Speaker 01:
So suppose say one of your clients in November, December 2009 actually did use credit hours.

[00:18:35] Speaker 01:
What do you think the litigation would look like about whether that should or should not be subtracted from what would otherwise be owed?

[00:18:44] Speaker 00:
What I would need to explore and discover

[00:18:46] Speaker 00:
Usually we'd look at what sort of memos, et cetera, went out about use of credit hours after October 1st, 2009.

[00:18:53] Speaker 00:
We didn't receive any discovery like that in the earlier litigation because everybody thought the program had ended.

[00:18:59] Speaker 00:
We would require discovery on the issue of what were the instructions from the FAA?

[00:19:05] Speaker 00:
How are they getting around a negotiation from the union?

[00:19:08] Speaker 01:
Then we'd like to see... I guess what I'm just wondering about is this.

[00:19:12] Speaker 01:
Suppose your client did actually use the credit hours.

[00:19:16] Speaker 01:
Then you would say, can't subtract that because it turns out it was illegal?

[00:19:22] Speaker 00:
Well, we might say that.

[00:19:23] Speaker 00:
We'd also want to see the circumstances under which it was used.

[00:19:27] Speaker 00:
Did that comport with the free right to use the credit hours with FAA approval, but that they weren't influenced or somehow

[00:19:35] Speaker 00:
required to use them contrary to law.

[00:19:37] Speaker 00:
For example, maybe they instructed them, you can't use your leave until you use up all your credit hours.

[00:19:42] Speaker 00:
I don't know, because we haven't explored that.

[00:19:44] Speaker 00:
But I would like to explore that very much, because everyone in the case until December 2015 thought this program had ceased October 1, 2009.

[00:19:55] Speaker 00:
So I would want to explore that.

[00:19:57] Speaker 00:
I'd also want to see if I should get liquidated damages for when they used the credit hours.

[00:20:02] Speaker 00:
There's a huge delay

[00:20:03] Speaker 00:
in payment.

[00:20:04] Speaker 00:
As I mentioned at the start of this argument, they've waited 9, 10, 11, 12, 13 years to use these under the recent Court of Claims Martin decision, which follows the decisions in the Second Circuit and Rogers and follows the Bigs decision in the Ninth Circuit.

[00:20:21] Speaker 00:
Delayed payment requires liquidated damages.

[00:20:24] Speaker 00:
We didn't get that earlier, so we will seek that for all of these credit hours used after October 1st, 2009, if they were in fact used.

[00:20:32] Speaker 00:
and of course depending on the circumstances under which they were used.

[00:20:35] Speaker 00:
If they were under circumstances that violated the law then we would seek that they get no credit for that.

[00:20:42] Speaker 00:
And then of course we're going to have to go into a trial on liquidated damages again because it's likely the government will put up a defense on these issues and we'll have another trial as well.

[00:20:57] Speaker 00:
Now the harm that the plaintiffs suffer is they've been awarded

[00:21:00] Speaker 00:
liquid damages on their existing damages, and they don't get interest.

[00:21:04] Speaker 00:
So the delay only really assists one party in this case, which is the government.

[00:21:11] Speaker 00:
The case has been going on quite a while, and so the delay will further benefit them.

[00:21:16] Speaker 01:
But is there any case law that recognizes that in a calculus say about, it sounds like the question is, government made a mistake.

[00:21:30] Speaker 01:
should the mistake be excused?

[00:21:33] Speaker 01:
And the question of whether there's prejudice in now excusing the mistake plays a role in answering that question.

[00:21:42] Speaker 01:
Putting aside the kinds of issues that you've described about inquiries that would fairly have to be made about any

[00:21:50] Speaker 01:
post-September 2009 credit hours.

[00:21:53] Speaker 01:
Just on the question of delay in a regime where there's no interest, is there authority saying that that can be recognized as an important piece of prejudice?

[00:22:06] Speaker 00:
I'm not familiar with that being recognized as an important piece of prejudice in these circumstances.

[00:22:12] Speaker 00:
I just think we can take notice that there are cases under the FLSA that say, against the government, you can't get

[00:22:19] Speaker 00:
uh... interest in liquidated damages there's a dc circuit case uh... social security you can't get either one you can't get both you can't get both uh... and that's ssa baltimore versus FLRA 201 F-365 2000 case uh... so the plaintiffs are stuck with a certain amount and if the case goes on for several more years then of course due to the time value of money that the value of that

[00:22:47] Speaker 00:
their damages will erode.

[00:22:49] Speaker 00:
But also, there's the problem, and one reason the case is when they go on this long, there's substantial prejudice that we suffer from the delay because we have a key witness, a union president who negotiated the credit hours program, who's passed away.

[00:23:05] Speaker 00:
And we also, of course, have faded memories, et cetera, when people are talking about credit hours and what the programs were nine years ago in the case.

[00:23:18] Speaker 00:
So the plaintiffs have suffered significant prejudice and in terms of delay and they will expend additional money that they shouldn't have had to expend.

[00:23:30] Speaker 00:
We could have explored this program back in 2010-11 if it was in fact going on and it would have been a surprise to the union I think and we would have had all these issues before us at trial and instead what we've got now is we'll have to retake depositions and try to

[00:23:48] Speaker 00:
to unwind what has happened.

[00:23:50] Speaker 00:
Are there any further questions?

[00:23:53] Speaker 04:
Thank you, counsel.

[00:23:55] Speaker 04:
Thank you.

[00:23:56] Speaker 04:
Ms.

[00:23:56] Speaker 04:
Jarn has some rebuttal time if you need it.

[00:24:01] Speaker 02:
Thank you, Your Honors.

[00:24:02] Speaker 02:
Well, I have to respectfully disagree with my colleague that it's undisputed that the entire credit hour program ceased because it was very clear that the credit hour usage continued and certainly

[00:24:18] Speaker 02:
Council may not have been aware of this, but appellees, the party, was aware of this.

[00:24:23] Speaker 02:
They were the ones that were using the credit hours.

[00:24:25] Speaker 03:
But your own brief does say all credit hour practices have ceased.

[00:24:30] Speaker 02:
Yes, but our testimony said we had testimony from a witness at Appendix 999-1000 testifying that appellees were entitled to continue using credit hours.

[00:24:41] Speaker 02:
The court's decision at Appendix 1631 said only that the provision of credit hours had ceased.

[00:24:48] Speaker 02:
We had later an affidavit attached to our motion for summary judgment.

[00:24:52] Speaker 02:
This was after the remand with the statement saying after 2009, appellees were allowed to continue using the credit hours.

[00:25:00] Speaker 02:
And again, the appellees themselves were aware.

[00:25:03] Speaker 02:
This case reminds me of a situation where it's as if appellees went to the grocery store every week, bought a bunch of groceries, got a receipt for their groceries, and then at the end of the year when presented with

[00:25:15] Speaker 02:
The total amount that the groceries that they bought from the supermarket said, what a surprise.

[00:25:20] Speaker 02:
These parties, these appellees are the parties, they were the ones that were using it.

[00:25:25] Speaker 02:
And despite the fact that they knew that they were still using it and were therefore allowed to use the credit hours, no discovery was ever sought about that program of continued use.

[00:25:36] Speaker 01:
The discovery- Did you all seek discovery of how many plaintiffs are here?

[00:25:42] Speaker 02:
There were over 8,000.

[00:25:43] Speaker 01:
Did you all seek discovery of their shoebox kept receipts, as you would call them?

[00:25:50] Speaker 02:
No, we didn't.

[00:25:50] Speaker 02:
We didn't need the discovery.

[00:25:52] Speaker 02:
We had the access to the information.

[00:25:54] Speaker 02:
The appellees were aware that they had been using it, had the records that they had it or didn't.

[00:26:00] Speaker 03:
But you didn't give up that information that you now concede you had.

[00:26:03] Speaker 02:
We didn't give it up in the aggregate form.

[00:26:05] Speaker 02:
All we did was put it in a convenient, we took information

[00:26:09] Speaker 02:
that was given to the Pellies on a bi-weekly pay period basis.

[00:26:12] Speaker 02:
They have time and attendance cards.

[00:26:14] Speaker 02:
They have payroll.

[00:26:15] Speaker 02:
We made it in a very convenient form.

[00:26:17] Speaker 03:
But what about the fact that you proceeded on the basis that there was a firm end date for these calculations?

[00:26:24] Speaker 03:
That's what you told the trial court.

[00:26:26] Speaker 03:
These were complicated calculations that the trial court had to go through.

[00:26:29] Speaker 03:
And then you're saying, oh, by the way.

[00:26:32] Speaker 02:
Well, with respect to through the time period up through 2012,

[00:26:38] Speaker 02:
We agreed only that the appellee's expert calculations were based on records through 2009.

[00:26:46] Speaker 02:
That was the agreement.

[00:26:47] Speaker 02:
We didn't say there was no usage after 2009.

[00:26:50] Speaker 02:
That was a mistake.

[00:26:52] Speaker 02:
I take full responsibility.

[00:26:53] Speaker 02:
Credit hour usage continued from 2012 on through 2015.

[00:26:59] Speaker 02:
We could not have put those records in front of the court back in 2012.

[00:27:02] Speaker 02:
We did provide them to the appellees.

[00:27:04] Speaker 02:
relatively soon after this court's final decision and remand and the trial court took it back over.

[00:27:10] Speaker 02:
Again, this could not have come as a surprise to the appellees.

[00:27:13] Speaker 02:
They were the ones that were requesting permission each time they used the credit hours.

[00:27:18] Speaker 02:
They were on notice that the court's formula, the formula the court had adopted was willing to subtract the value of credit hours used from any overtime pay.

[00:27:27] Speaker 02:
That was the formula they were on notice of.

[00:27:29] Speaker 02:
They knew that they were continuing to use credit hours and therefore getting the partial value

[00:27:34] Speaker 02:
So to claim surprise suddenly and never seek discovery from the time that they were made aware of these supplementary reports, even though briefing on remand had just started.

[00:27:45] Speaker 02:
So the appellees had not even filed their motion for summary judgment on remand when we gave them a supplementation in 2014.

[00:27:53] Speaker 02:
And yet they just ignored it.

[00:27:54] Speaker 02:
They didn't object to it.

[00:27:56] Speaker 02:
They didn't seek discovery on it.

[00:27:59] Speaker 02:
They just ignored it.

[00:27:59] Speaker 02:
And we brought that to the Court's attention.

[00:28:01] Speaker 02:
We said, look, we've updated this, and they're just

[00:28:04] Speaker 02:
not even addressing it, even though they know that's the formula, and in the past have voluntarily included this information in their calculations.

[00:28:12] Speaker 02:
And again, they did not object.

[00:28:14] Speaker 02:
They did not seek discovery.

[00:28:16] Speaker 04:
They simply ignored it.

[00:28:18] Speaker 04:
Thank you, Ms.

[00:28:18] Speaker 04:
Stern.

[00:28:18] Speaker 04:
You note your red light.

[00:28:19] Speaker 04:
Thank you, Your Honor.

[00:28:21] Speaker 04:
Those parties have performed well in their unaccustomed roles.

[00:28:25] Speaker 04:
The court will take a brief recess and return in a few moments.

[00:28:37] Speaker ?:
Take a short recess.