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Case number 15-7013, Duanda Jones Appellant versus David Chang DuFat Sr.

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at L. Ms.

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Dennis for the appellant, Mr. Neuberger for the appellee.

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Good morning, Your Honors.

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May it please the court?

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Roddy Dennis from Consumer Justice ESQ on behalf of the appellants.

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I'd like to reserve three minutes of my time for rebuttal.

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Okay.

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Your Honors, this case revolves around a one-page letter that was sent to my client.

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It was printed on law form letterhead.

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And the question before this panel is whether or not the district court erred in ruling as a matter of law

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that this attorney demand letter sent on attorney letterhead signed by an attorney as well as titled as an attorney was misleading to the least sophisticated consumer.

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As this is a matter of, though this is a matter of first impression for this particular circuit,

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The question before the court is also whether or not the district court erred when there are three circuit opinions involving a letter substantially similar to this one, though not at all binding on this court, was actually ruling in favor of the consumer saying the letter was potentially misleading.

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The language is different here in the letter, right?

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The language is very similar to the letters in Lesher and Gonzalez, as well as in Nielsen, as well.

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It's very, very similar in that.

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The only thing, the difference between... The bottom says, please be advised that we are acting in our capacity as a debt collector.

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Correct.

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But in the Nielsen letter, the... And then be advised this is an attempt to collect a debt.

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any information obtained will be used for that purpose.

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I think that's what you need to... That's a disclaimer, yes.

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Yeah, that's what you need to deal with, I think.

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Right.

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With respect to this particular letter, the sophisticated consumer is supposed to understand the disclaimer to mean that no attorney is involved in this particular letter, though the disclaimer does not actually say that.

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The disclaimer actually says that no attorney has personally reviewed the particular circumstances of your account.

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As I said before, with respect to the three other circuits that have ruled, Lester had a similar disclaimer in that letter, as well as the Gonzalez case had a similar disclaimer in that letter as well.

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And both of those cases came back in favor of the consumer saying that the letter was deceptive as to the attorney involvement, as well as deceptive as to the threat of legal action, just based on the letterhead alone.

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The court's role in this particular situation is to look at the letter that appears on page 20, I believe, in the appendix and determine whether the letter is misleading through the eyes of the, look at the letter through the eyes of the least sophisticated consumer and determine whether the letter is misleading.

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As it's very difficult to do justice to the letter by simply describing it, I would, it's very,

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What the district court did is the entire impact of the letter is not really communicated in the court's opinion, in that it basically focuses on the disclaimer and says that if you include these magical words, anything else in the letter is fine, which is contrary to what has been said in every certain case.

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Look at this particular attorney collection of letters in the context of E3, in the context of 1692 E3.

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And it's contrary to, as I said, the decision that I've also cited inside my brief.

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Of course, as Your Honor mentioned, the large part of this case depends on the defendants' claim that the large part of this case relies on the disclaimer, the fact that the disclaimer was included into the letter.

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But the way that this thing was included, it was included at the bottom of the page, after the signature block.

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In other words, it basically, and it's after it- But if it were before the signature block, would that make a difference to you?

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It would be less deceptive.

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I still believe that it would be deceptive because the disclaimer itself, the language in the disclaimer itself, does not actually disclaim what it purports to disclaim.

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For example... What's the nature of the deception in your view?

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Well, the letter itself implies that an attorney is very actively involved in this particular, in this particular lawsuit, sorry, in this particular, in the sending of this particular letter, and has assessed the, professionally involved, and has assessed the consumer's claims, and determined them valid, and with merit, and now the next step is that they're, you know, that the company is about to sue.

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Bank of America or cash, whichever one.

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based on just the letter itself.

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And this is something that is not just unique to, this is not an interpretation that is bizarre or idiosyncratic.

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This is what was said in Lesher with the Third Circuit.

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This was said in Gonzales and the Fifth Circuit.

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It was also said in Nielsen.

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Each of them, in the context of an E3 claim, the word not to falsely represent that a letter is from an attorney, the word from has actual meaning within case law.

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And that means that an attorney is professionally involved in that particular case.

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And in this case, defendants concede that there's no attorney involvement with respect to this case, yet there's an actual signature included in the letter, as well as the title leading with the word, abnormally-styled title, which is attorney David Sean Duffing.

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Now, normally, when an attorney writes his name or gives his inframotter, he typically says, you know, it's David Sean Duthak, Esquire.

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Or in this case, where a defendant was clearly acting as a debt collector, because he's not licensed to practice in the District of Columbia, he was clearly acting as a debt collector.

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To more accurately say, it should have said debt collector David Sean Duthak.

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But instead, it said attorney David Sean Duthak, which is very, as I said, misleading to police

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because it actually encourages, actively encourages the very misimpressions that you report to disclaim in the actual disclaimer that you included in the letter.

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Additionally, with respect to, I think the district court aired because many of the, there are many standards that are in my client's favor in terms of what, that are beneficial to my client that it does not appear that the district court actually considered.

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For example, all plaintiff's allegations, including mixtures of law and fact, must be accepted as true.

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Resolve all reasonable inferences in plaintiff's favor.

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Now, it's clear that the parties have different views as to what inferences that can be drawn from this particular letter.

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My client says that it is deceptive.

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She thought that she was about to be sued.

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She thought, and this is in the complaint, she believed she was about to be sued, which is also probative to the objective, least sophisticated consumer standard as well.

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But anyway, as I said, my client thought she was about to be sued, and she hired an attorney based on that.

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Another thing, as I said before, if three other circuits have ruled that a substantially similar letter is

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is is is put deceptive or potentially deceptive misleading or potentially misleading, then it would seem that reasonable mind reasonable minds may differ as to whether this particular letter.

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Because this letter, in your view, threatened to take legal action that could not be taken.

[00:10:04] Speaker 00:
Yes.

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Yes, it does, Your Honor, because and had no intention of being taken because Mr. Duffing is not licensed in the District of Columbia.

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He subtitled the letter

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is on attorney letterhead.

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He signed the letter as attorney David Shondepic, as well as he gave his signatures indicating that he was professionally involved in this particular, in this particular drafting of this particular letter and the assessment, professional assessment of this particular account.

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In case law, in various circuits that I've looked at this question, a signature on an attorney letterhead collection letter means something.

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It means that, and if you have not been professionally involved in that letter, her Coleman, her Gonzalez, and her Lesher, if you have not, then that is deceptive as a matter of law.

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If you have not, and in Nielsen, Nielsen is exactly the same way, and the Seventh Circuit analysis of Nielsen is the exact same thing.

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So it doesn't threaten directly any litigation.

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It implies it, Your Honor.

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In E3, it says... But doesn't every debt collection letter, if you ignore it...

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I think common sense is eventually someone's going to come after you.

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Well, I would not, not in terms of, if a letter is printed, a letter printed on law form letterhead, and it said that in many of the cases cited in my brief, it has a, a letter from an attorney has something, something, implies something much more serious than the letter coming on a regular debt collections letterhead, debt collections agency's letterhead.

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and that attorney can go to, they can take you to court, they can sue.

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But the debt collection letterhead or letter from someone else who's not an attorney that had all the same language, if you didn't pay it, presumably you would understand that they're going to take some action to try to collect it at some point, right?

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Well, a debt collector will not know, Your Honor, because as I said before, with respect to it having an attorney letterhead and it's been said.

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Why would anyone ever pay their,

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other than moral reasons, why would people pay their debts if they don't think there's going to be some action down the road to collect them?

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Well, I think the majority of people do pay their debts.

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They pay their debts because they owe their debts.

[00:12:17] Speaker 04:
For moral reasons, but also people understand if you keep ignoring it for months and months and months, eventually, I think, I'm just talking common sense here, eventually I think people understand that there's going to be some kind of small claims action or something or other.

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But in this particular case, Your Honor, we're speaking about this particular letter that was sent on law from letterhead, and with respect to a debt collection letter, it does not have all those same implications.

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Here, because it was an attorney, Mr. Duthick purported to be acting as an attorney, professionally involved in the assessment of this account,

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in the assessment of this particular account and that they were about, that a lawsuit was imminent just based on his signing of the letter, the signature, all the legal references, the fact that he has been retained to collect the debt.

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How does an attorney who was retained to collect the debt, how do they do that?

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They sue.

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All these things inside this particular letter is all contradictory as well to the actual disclaimer that's purporting to disclaim no attorney involvement.

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And not to mention the fact that the disclaimer itself

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As I said before, I think that Greco was wrongly decided because the disclaimer itself does not actually disclaim against what it's supposed to disclaim against.

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There really isn't an attorney with this name?

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I'm sorry, Your Honor.

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This is a real attorney?

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That is an attorney who is not licensed in the District of Columbia.

[00:13:40] Speaker 02:
Correct, Your Honor.

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But there's no question that he exists.

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He said he is not licensed in the District of Columbia.

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As far as whether or not he, a question of whether or not he exists as an attorney, that would be a question I do not believe is in the record.

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But he is not licensed in the District of Columbia, as I said.

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And I just wanted to make one thing with respect to the Greco disclaimer, the language used in the disclaimer.

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The lower court in Greco explained it this way.

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The Third Circuit explained that the Greco disclaimer means this.

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While this is a letter from a law firm, no attorney has specifically examined the recipient's account information.

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And hence, no attorney had yet recommended filing a lawsuit against the creditor.

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Now, implicitly in that is the acknowledgement that this letter, even though it doesn't have it, the Greco letter threatens lawsuit.

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Now, if you, I do not get that, what the court said it, explained what it said from, at this time no attorney with this firm has personally reviewed the particular circumstances of your account.

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So the language of the letter, of the disclaimer, does not

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say what the third circuit court said that it actually explains to the least sophisticated consumer.

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As I said before, though something may be crystal clear to a sophisticated intellectual like a judge, it is not necessarily, it can be completely unclear to someone whose formal education that ended at the sixth grade.

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So that is the way you have to read when looking at this particular letter as to whether or not it's misleading to the least sophisticated consumer and which is why it's a question of fact with respect to whether it's misleading to the least sophisticated consumer and not a question of law or logic that, as I said, because it may be very obvious to a judge is not necessarily so obvious to a least sophisticated consumer.

[00:15:48] Speaker 04:
Okay, good point.

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Thank you.

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We'll give you time on rebuttal.

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Thank you, Your Honor.

[00:15:58] Speaker 01:
Good morning, Your Honors.

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May it please the court manual new burger for C-A-C-H-L-L-C

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The decision of the district court should be affirmed for three reasons.

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First, the letter in question does not violate the FDCPA.

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Second, the DC statutes in question do not apply.

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And third, the court did not abuse its discretion in denying attorney's fees.

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I'd like to address the merits, but before I do, I think I probably owe it to the court to address the core issue of issue of law versus issue of fact.

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And even before that just ran off, I want to assure you, Mr. Dufek does exist.

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He's actually the gentleman on the left end of the table.

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The second, third, fourth, fifth, and ninth circuits have all said that deception in a letter under the FTCPA can be decided as a question of law.

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The Greco case involved a decision under Rule 12C.

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That is exactly why Rule 12C was chosen as the vehicle in this particular case.

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said the same, although it was dictated because of the different statute that relied on the cases you're talking about, I think.

[00:17:08] Speaker 01:
Exactly, Your Honor, and the closest counsel comes in arguing this point is the Gonzalez case.

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a Fifth Circuit case in which the court says some letters are so clearly compliant that you can decide it's a matter of law.

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Some are so clearly non-compliant that you can decide it's a matter of law, and some fall in the middle.

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And Gonzalez came out of Texas, I suspected, that's a reflection of Coach Darrell Royall's rule that three things can happen when you throw the football and two of them are bad.

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But whatever the case may be, it is very clear in five separate circuits, and this court in dicta

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Deception can be decided as a matter of law, and I need the court to understand the importance of this.

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You just heard a case involving the CFPB.

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The CFPB also enforces the FDCPA.

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If these issues cannot be decided as a matter of law, you have a federal agency with the power to sue attorneys and bring the full weight and power of the federal government to bear, and a sole practitioner like Mr. Dufek would be unable to argue on a 12B6 or 12C motion that his letter is compliant with the law.

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The second core issue here is least sophisticated consumer standard.

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There are two standards.

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We are not asking the court to follow anything other than the least sophisticated consumer standard.

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I am not inviting further appellate effort in this case.

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Mr. Dufax's letter, I think, really comes down to this.

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Appellant argues that the least sophisticated consumer should not be presumed to have read the letter in its entirety.

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Mr. Dufek observed yesterday, it's as if the appellant says she should get to read the letter like this, folding over the bottom part that contains the disclosures at issue.

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Actually, it's worse than that.

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It's as if you could fold the letter twice so that you could cut off two lines of it, but keep the very last line, because you see the last line is also a statutorily required disclosure.

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It's required by section 1692E11.

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An appellant does not argue that that notice was obscured or overshadowed.

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The disclosure issue comes between the signature and another statutorily required disclosure.

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And although the appellant's brief describes this as in the margins, it clearly is not.

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What this letter does is exactly what the statute requires.

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It states the amount of the debt, the name of the current creditor, the name of the original creditor, and the

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account number.

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Nothing in the complaint in the court below asserts that any of those statements are false or inaccurate.

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There is no assertion in the complaint that it is not the correct creditor, not the correct account number, not the correct balance, that Ms.

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Jones is not the correct debtor, or that she does not owe the debt.

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The letter then informs the appellant that Mr. Dufek has been retained and proceeds to give the remaining three disclosures required by Section 1692-G Subsection A. Nothing in the complaint asserts that those disclosures are defective.

[00:20:05] Speaker 01:
Mr. Dufek then explains how to make a payment, how to pay online, and how to contact him.

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He signs it, and in immediate proximity to his signature gives not only the Greco disclaimer,

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to clear up any confusion about his signature, but the additional disclaimer that the Gonzalez and Lesher court suggests that he is acting only as a debt collector.

[00:20:25] Speaker 01:
The Gonzalez case and the Lesher case really are not even on point because what those cases dealt with was the same letter by the K-law firm, a letter in which the Greco disclaimer was on the back side, and neither Lesher nor Gonzalez disaffirms or rejects

[00:20:42] Speaker 01:
What they say is if you put the disclaimer on the back side, you haven't done a sufficiently good enough job of explaining to the least sophisticated consumer that you're acting solely as a debt collector.

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Mr. Dufek has done that.

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With all due respect, his letter complies fully with the act, and there is no deception here.

[00:21:01] Speaker 01:
Now, counsel also has accused the court below of not ruling on certain key issues.

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I would suggest respectfully, if that were the case, why are we here?

[00:21:12] Speaker 01:
Either the court ruled on those issues or we don't have a final order of the case.

[00:21:16] Speaker 04:
What about the fees, the fees issue?

[00:21:19] Speaker 01:
I think it was implicitly denied, Your Honor, and there was not even the slightest suggestion that the denial was an abuse of discretion.

[00:21:27] Speaker 01:
There's no explanation of how it was an abuse of discretion.

[00:21:30] Speaker 03:
There's no explanation of, first of all, there's no particular ruling on the attorney fees.

[00:21:38] Speaker 03:
And the court was required by the federal rules of civil procedure to award attorney fees unless it would be undue or I can't remember what the exact language is.

[00:21:54] Speaker 01:
There was a there was a dispute on the fees at the trial court.

[00:21:58] Speaker 01:
The fees claimed by Ms Dennis were so unbelievably enormous for the work involved that I think $20,000 for a simple motion for protective order.

[00:22:11] Speaker 01:
arguing nothing more than the rules say we don't do discovery until there's been a rule 26 conference and the court sets a scheduling order that hasn't happened.

[00:22:21] Speaker 01:
And the court denied it without any explanation.

[00:22:23] Speaker 01:
The court simply denied the motion with a minute ruling.

[00:22:27] Speaker 01:
Um, I don't know why, to be quite honest, I'm surprised at the ruling, but it is what it is.

[00:22:34] Speaker 01:
Uh, the, uh, the F. D. C. P. A. Claims at issue, though,

[00:22:40] Speaker 01:
simply are not present.

[00:22:44] Speaker 01:
And the cases on which counsel relies generally predate Greco.

[00:22:49] Speaker 01:
If I may give a brief history, Greco followed a case called Clomann.

[00:22:55] Speaker 01:
In Clomann, a lawyer sent a series of letters of which he had no actual knowledge.

[00:23:00] Speaker 01:
He didn't sign the letters.

[00:23:02] Speaker 01:
He didn't see the letters.

[00:23:03] Speaker 01:
They were generated by computer.

[00:23:06] Speaker 01:
The series of letters that the court reads them clearly imply that a suit is likely to be filed over a debt of less than $10 on a magazine subscription.

[00:23:14] Speaker 01:
The Coleman court said

[00:23:15] Speaker 01:
that a lawyer's letterhead implies, and they use these words, at least in the absence of language to the contrary, end quote, that the lawyer is making meaningful decisions about the consumer's account.

[00:23:26] Speaker 01:
When Greco came along with the Second Circuit said, yes, this is language to the contrary, it clears up the confusion caused by the lawyer's letterhead.

[00:23:35] Speaker 01:
The Greco case itself involved attorney letterhead.

[00:23:38] Speaker 01:
If every attorney letter were a threat of suit,

[00:23:42] Speaker 01:
that a letter from Mr. Dufek confirming a settlement would be a threat to sue.

[00:23:46] Speaker 01:
A letter from Mr. Dufek confirming payment terms would be a threat to sue.

[00:23:50] Speaker 01:
A letter pursuant to Section 1692 F2 informing a consumer as required that he intends to deposit a post-data check would be a threat to sue.

[00:23:59] Speaker 01:
That is simply not what the statute provides for.

[00:24:05] Speaker 01:
I see that I'm almost out of time.

[00:24:07] Speaker 01:
I want to be sure I know Mr. Dufek graciously authorized me to say that he joins in our argument that he believes the decision of the district court should be affirmed for the reasons set forth therein.

[00:24:17] Speaker 01:
I am prepared to answer any questions if the court has some, but I don't want to abuse my time.

[00:24:22] Speaker 01:
Thank you very much.

[00:24:23] Speaker 01:
Thank you, Your Honor.

[00:24:24] Speaker 01:
Thank you.

[00:24:27] Speaker 04:
Give you two minutes for a bottle.

[00:24:40] Speaker 00:
First, Your Honor, Greco has been ignored by two different circuits, by Gonzalez and Lesher.

[00:24:46] Speaker 00:
In terms of both of them said that even though it was acknowledged in Lesher that even though it doesn't matter whether the disclaimer is on the front or the back, it's the fact that it contradicts what's actually in the attorney letterhead.

[00:24:59] Speaker 00:
The disclaimer contradicts what's going on with respect to the attorney letterhead.

[00:25:05] Speaker 00:
So that particular

[00:25:07] Speaker 00:
In terms of whether or not Greco has been – it has not been followed by any – I believe it's been followed by two circuits because two of them have ignored it.

[00:25:18] Speaker 03:
Is it your theory – I'm trying to understand on the subsection five.

[00:25:26] Speaker 03:
of the statute that this, because it's on an attorney's letterhead, it implies that a suit is going to be brought and the suit couldn't be brought because the attorney is not admitted in DC.

[00:25:44] Speaker 03:
Is that your theory?

[00:25:45] Speaker 00:
Well, the theory is that the attorney was not authorized to bring suit by his client because he's not licensed in the District of Columbia against a District of Columbia consumer.

[00:25:56] Speaker 00:
at the time the letter was sent.

[00:25:58] Speaker 03:
But that doesn't preclude a lawyer from bringing a suit in the District of Columbia.

[00:26:02] Speaker 03:
It just associates with a local lawyer.

[00:26:05] Speaker 03:
Well, don't you have to have both things?

[00:26:07] Speaker 03:
It's not only threatening a lawsuit, but also that it's a threat you can't carry out?

[00:26:15] Speaker 00:
Well, it has to be an imminent threat.

[00:26:18] Speaker 00:
That's it.

[00:26:18] Speaker 00:
It has to be an imminent threat, or it can be a threat that you have no intention of carrying out.

[00:26:24] Speaker 00:
And as this motion was done on the pleadings, we have no idea whether or not defendants planned on carrying out suit or not.

[00:26:31] Speaker 00:
That has not been established by the pleadings.

[00:26:32] Speaker 03:
It says the threat to take any action that cannot legally be taken.

[00:26:37] Speaker 00:
Or is not intended to be taken.

[00:26:38] Speaker 03:
Or is not intended to be taken.

[00:26:41] Speaker 03:
So which of those two is your claim?

[00:26:44] Speaker 00:
Both, Your Honor.

[00:26:45] Speaker 00:
Because, well, we don't have any facts in the record to determine whether or not what the defendant intended to do.

[00:26:50] Speaker 00:
And with respect to the fact that he could not take legal action, at the time the letter was sent, because this is the time period that we're speaking about, is at the time the letter was sent, he falsely implied that he was going to take it.

[00:27:03] Speaker 03:
Because he's not admitted in DC.

[00:27:05] Speaker 03:
Is that it?

[00:27:05] Speaker 00:
Well, he's not authorized to bring suit against a district attorney.

[00:27:10] Speaker 00:
He was acting solely as a debt collector.

[00:27:13] Speaker 00:
He's not an attorney who was actually hired as an attorney.

[00:27:17] Speaker 03:
He was acting solely as a debt collector, not as a litigation attorney, but that's what the letter says.

[00:27:26] Speaker 00:
Well, he says that we are acting in our capacity as a debt collector.

[00:27:29] Speaker 00:
Now, the least sophisticated consumer is not going to know that an attorney cannot also act as a debt collector.

[00:27:37] Speaker 00:
So the threat is still there.

[00:27:38] Speaker 03:
The least sophisticated consumer will know nothing.

[00:27:43] Speaker 00:
Right.

[00:27:43] Speaker 00:
They will assume that a letter coming from a law firm letterhead is from an attorney claiming a demand letter, claiming that you owe this amount of money and it must be paid.

[00:27:54] Speaker 00:
is a threat in that if they don't pay it, then they're going to sue.

[00:27:57] Speaker 00:
For example, in Lesher, the court said, for this reason, we believe that it's misleading and deceptive for the Kayhaw firm to raise the specter of potential legal action by using its law firm title to collect the debt when the firm was not acting in its legal capacity when it sent the letters.

[00:28:12] Speaker 00:
In the Fifth Circuit Gonzalez, a letter from a lawyer implies that the lawyer has become involved in the debt collection process and the fear of lawsuit is likely to intimidate most consumers.

[00:28:21] Speaker 00:
In Nielsen, the court said,

[00:28:23] Speaker 00:
A debt, the judgment that Nielsen or any other class member was delinquent of her debt and a candidate for legal action even though they were not meaningfully involved in the particular suit.

[00:28:35] Speaker 00:
These are all, this is why a threat as to whether or not this particular letter is a threatened lawsuit is at least in the minds of the, with respect to the view of the desophisticated consumer is at least

[00:28:48] Speaker 00:
reasonable minds may differ as to whether or not a threat exists with respect to this particular letter, because all of those letters mentioned were very similar, almost identical to the letter here, except this one is more egregious in that the defendant included his signature and tile.

[00:29:05] Speaker 00:
When you include your signature in a Dunning letter, form letter,

[00:29:09] Speaker 00:
That is per se deceptive, according to Plumman.

[00:29:12] Speaker 00:
And it's not possible.

[00:29:14] Speaker 00:
There's no circuit cases that the defendant has cited, or even regular cases that the defendant has cited, or law court cases, where that has been approved and sanctioned and said that is OK to include your signature in a letter that you have not been personally involved in having any personal involvement as an attorney in.

[00:29:32] Speaker 00:
And the defendant has admitted that he was inside the letter that he was acting as a debt collector.

[00:29:38] Speaker 00:
he was not acting as an attorney.

[00:29:40] Speaker 00:
So why would you, if you're purporting to disclaim attorney involvement, why then would you sign the letter, as well as include in your title, attorney David Sean Duffy?

[00:29:51] Speaker 00:
That doesn't make sense.

[00:29:53] Speaker 00:
Unless you're trying to encourage the very misimpressions that you purport to dislike.

[00:29:57] Speaker 04:
Can I ask you one question about the attorney's fees?

[00:30:00] Speaker 04:
My understanding is that they objected to the discovery and cited local rule 26.2, which does

[00:30:08] Speaker 04:
to support their position on this.

[00:30:12] Speaker 04:
Obviously, the district court did not agree with their position, but they're supposed to not have to pay attorney's fees if their position was substantially justified.

[00:30:22] Speaker 04:
Wasn't it substantially justified, at least 126.2?

[00:30:25] Speaker 00:
I do not believe so, Your Honor, not at all.

[00:30:27] Speaker 00:
And I argue that in my

[00:30:31] Speaker 00:
uh, in my brief, that it is not substantially justified because the court is giving, as I said, the reasons that I lay out inside my brief is the reason why I believe that they were not substantial.

[00:30:40] Speaker 04:
The parties hadn't agreed to discovery, correct?

[00:30:43] Speaker 00:
The party, well, in federal court, you can do discovery after you complete the initial disclosure.

[00:30:52] Speaker 04:
The rule says unless a party objects during the conference that initial disclosures are not appropriate in the circumstance of this action, they had objected, right?

[00:31:00] Speaker 00:
That applies to initial disclosures.

[00:31:03] Speaker 00:
That doesn't apply to discovery at all.

[00:31:07] Speaker 04:
But the point was that the judge hadn't ruled on that, was my understanding.

[00:31:11] Speaker 00:
the judge hadn't.

[00:31:12] Speaker 00:
I'm sorry, your honor.

[00:31:13] Speaker 00:
Could you repeat that?

[00:31:14] Speaker 00:
He hadn't ruled on there.

[00:31:15] Speaker 04:
He didn't rule on there for a long time.

[00:31:17] Speaker 04:
I gather on their objections to the discovery.

[00:31:21] Speaker 00:
There was stated they didn't submit any objections to discovery here.

[00:31:24] Speaker 00:
I don't.

[00:31:25] Speaker 00:
I don't recall them submitting objections to the discovery.

[00:31:29] Speaker 04:
It may have been joint trial report.

[00:31:31] Speaker 00:
Okay, so perhaps they could have.

[00:31:34] Speaker 00:
But there was no.

[00:31:34] Speaker 00:
There was no ruling.

[00:31:35] Speaker 00:
The judge actually did not submit a protective order.

[00:31:39] Speaker 00:
And after, in terms of submitting the motion for attorney's fees, as I said before, I don't see how, and as I said, I argue this in my motion, how that would be substantially justified if

[00:31:54] Speaker 00:
that rule applies specifically to initial disclosures.

[00:31:57] Speaker 00:
And I believe that is why the judge came back and unscrupulously denied their motion for protective order.

[00:32:04] Speaker 00:
And as I said before, because they were- But he also denied the motion for fees, your motion for fees.

[00:32:09] Speaker 00:
No, the judge did not.

[00:32:10] Speaker 00:
He did not rule at all on the motion for fees at all.

[00:32:13] Speaker 04:
There was no- He didn't break the motion for fees.

[00:32:16] Speaker 00:
Well, the defendants argue that I made the motion for fees

[00:32:22] Speaker 00:
and inside the motion for inside my opposition, which is not possible because it wasn't right to request fees at that point.

[00:32:29] Speaker 00:
So that is not, you know, that is not something that the court that the court actually ruled on in certain terms of in a plaintiff timely submitted her motion for fees after the court ruled on their dependence.

[00:32:40] Speaker 00:
Obviously, yet the court had not denied defendants protective motion for protective order.

[00:32:47] Speaker 04:
Okay, thank you very much.

[00:32:48] Speaker 04:
The case is submitted.