fraud case your honour's and i come to you with the one of the key pieces of evidence in the case sealed and it was sealed in by the district court judge  public there's nothing in the order indicating what parties have access to it and one parties don't in fact i don't know what i can speak of pertaining to the report as i appear before you today well if you need to reference the sealed report just let us know that you need to do that before you before you discuss the report i don't know that counsel would object well your honor i have and had a copy of the report before the ceiling before the case was filed and in fact there's more than one copies of the report there's drafts than the one that were that was sealed is there something in it that supports your arguments yes well any reason you can't and then file a letter under seal after this argument within let's say three days it with the officers that tells us what in that sealed documents supports your argument above and beyond what's already in your  yes i can do that the the the the trial judge should have granted our motion to recuse herself and did not and we're asking you among other reasons to reverse the case on that basis what's the ground recuse we there was we have a an expert witness who put in evidence that the there was as it turned out after a month of litigating in the trial court the facts finally came out that one of the defendant attorneys of posing counsel here after a defense exhibit was filed publicly directed that other defense attorney to file it under seal and after four days of this document being in the public record i noticed that it suddenly the judge entered an order that could it may be sealed it may be filed under seal which was a complete mystery as to why i saw that in the docket it took as i said a month of litigating in the record to find out what happened and why it was sealed like that this being a key document for our case and and he recused because he ordered documents sealed is that you know it's the export dr gregory ogden from property in law school indicating that his opinion that did not fall within the administrative exception that was a substantive document that required request and ex parte request to seal a document that that filing party filed in support of their motion that's an act that's an i prohibited ex application because it was a filing in support of their motion a substantive document and that should have been disclosed and it was not and it materially try to understand the harm that your client suffered as a result of this conversation since you hired the document all the time right your client had the document all the time correct yes i could refer to it in pleading honor this is a key document to our case in chief which we have the burden of proof to the document but but what is the harm that came to your client for by sealing it on the public record  well the harm is that document should be able to be referred to openly and completely in the public docket because there's more than one draft no and does that would sealing possibly indicate a quote deep seated and agonise him that would make their judgment impossible that's the test isn't well that's not the test for this particular exception is in that from the supreme court test is his whether the judge buchwald's impersonality may reasonably be questioned and dr argand testified she was required to recuse herself based on the circumstances of the expert the ceiling i understand you have an expert who gives a view that doesn't mean that carries the day that just his view but well no it's not just me it's see it's a reasonable observer and dr ogden his testimony is that a reasonable observer would find this i think when ever i litigant can find an ethics professor who says in my opinion there should be recusal we're obliged to so and they don't bother with other professors we must reverse counsel your time is almost expired i want to give you two minutes to discuss the merits i think counsel opposing counsel will agree that you can refer to the report if you need to that would you not and let me know that you agree to that he can't refer for them in a sealed communication to this court that what you're saying yes no i was asking him whether he could argue with the substance of the report that it was  violation and you object to that as you were in a sealed letter you object to him doing it you know ok that's why i asked about arguing here all right tell us what you can about why the report is for a while and which is what your claim is correct way the different drafts of the report schol and our client has has pledged that he tried to correct parts of the report that were false incorrect misleading and even fly even flying to new york with their general counsel to meet with officials from crab and tag and the the report contains certain statements about who conducted the report or who commissioned the report  and the there was a fight over even the simplest thing about who commissioned the report what party commissioned the report there was a fight over the scope of the report  and so that what party commissioned it what the scope was and the contents of the of the report none of this even matched the the so called engagement letter which indicated supposedly the party engaging it and the scope of the report there was a mismatch liable to make these arguments the district court where you not kno no we never had the opportunity you filed the second amended complaint but not a third right there is a proposed third amended complaint in the record in the right and judged to be amended complaint you were able to allege that the report buchwald wanted more details as to what compose those allegations which i can easily do by just taking information right out of the report and pleading further details and we don't have the opportunity to do that just book well thought that the third amended complaint did not solve the problems and that it would be futile to allow you to file it tell me why she's wrong she's and she's wrong because need than that well we didn't have notice as to what what exactly did was the judge considering to be wanting we knew that there was n evidence coming into the court record which supported expanding the pleadings and that's what generated the third amended complaint not to cure any pleading deficiencies supposedly but we can with notice from this court if it finds that there's anything deficient about the facts alleged we can take material out of that report and compared to the drafts and we can make it clear all right let's hear from the other side but you have your two minutes for about oh when you come back we have one on one attorney arguing for both order is not mentioned in the notice of appeal so as a threshold matter this court need not and indeed should not consider it to get to the actual basis the document that was filed under seal indeed the copy that's in the confidential appendix the plaintiff prepared for this court bears the e c f stamp of the originally filed document so he downloaded it he had it he has presented it to this court there was no and he was able to rely upon it in his motion papers below with respect to as he alleged nondisclosure of the telephone call to judge buchwald chambers there was no mystery about that call in my letter to the court when i opposed mr moore's application to unseal the document i stated that the sealing order had been made at the request of tag counsel the arkin groups counsel judge buchwald on january thirty first twenty seventeen called all counsel into her courtroom and stated on the record what she knew about  phone call which was that her law clerk had communicated to her that he had received a call from tags counsel who was requesting that a document be sealed because it had been mistakenly filed on the public docket that was it nothing about the substance of the case nothing even about the reason or the basis for the ceiling other than the fact that it was a mistake the judge then looked at the document conducted her own review and determined that it should be sealed and granted the sealing request then when mr moore sent a pre motion letter to the court asking for leave to file a motion seeking to unseal what parties exchanged letters with the court or sent letters to the court judge  considered the arguments made by all counsel and here to her original decision to keep the document under seal yet again she said it was not a final decision and so when the motion to dismiss the second amended complaint was fully briefed and when the court issued its order the court again considered the arguments this time considering whether the document of the so called white paper was a  document and determined that it was and made the specific findings which this court gosh decision requires that there were countervailing values that justified overcoming both the common law and the first amendment rights of public access so that that was a decision that was well within the court's discretion with respect to the ex ordinarily in fact may be inadmissible so the fact that there was no countervailing declaration by another expert is of no consequence judge buchwald was able to conclude that the telephone call with her clerk was administrative it was not substantive it was therefore not an extradition to contact and the court held both considering it as a an extrajudicial communication and as a non expert additional communication that it did not meet the standard for recusal that no reasonable observer who knew the facts about the call could dismissed the claim for lack of reliance because plaintiff's principal argument was that the principle of the only alleged misrepresentation in the report was that it had been commissioned by the free trade zone itself and judge buchwald held that he could have relied upon that since he as is conceded in the second ended complaint knew that purportedly that the free trade zone had not commissioned the report and there's nothing in the both the first and the second amended complaint by the time plaintiff filed a request to submit a third opposed third amended complaint he had not only those letters which detailed the lack of reliance and the other defects in his fraud claim he also and the motion to dismiss and it wasn't just one motion to dismiss it was three motions to dismiss  by my client a separate motion by korea and a separate motion by the orkin group all of which spelled out the defects the third amended complaint in fact does nothing to  add to plaintiff's claims of reliance he simply tries to add a new claim because his website crashed in two thousand and fourteen two years after his employment was terminated and he  tries to charge the free trade zone with with doing that and he tried to add two defendants whose names are already appear in the second amended complaint so that doesn't help his is defective for the same reason as a fraud claim against the other two defendants there's also an intentional infliction of emotional disk distress claim for which the court found that shakes out was immune under foreign government official immunity which is a conduct based immunity which protects official acts by foreign government officials plaintiff's complaint saw that there was an arrest warrant out for mr el omari in the united arab emirates and held him there briefly while they checked into the status of that determined that  the united states does not have an extradition treaty with the united arab emirates and mr elmore he was free to go and the only consequence to him was that he missed his connecting flight and hand to stay overnight in new york so putting aside whether that would even constitute anything close to an intentional infliction of emotional distress claim under new york law it's plainly an official action we have submitted to the district court and it's in the record  before this court the criminal judgments against mr l mari in in the united arab emirates and the interpol red notice calling for his arrest it was clearly an official act to communicate the red notice to the united states and therefore that official act cannot be the basis for a cause of action in this court if this court has no  thank you your honor first with respect to the jurisdiction issue raised even though the notice of appeal does not specifically address the recusal motion and decision it naturally it naturally flows from that notice of appeal that the judge issuing that opinion when she's challenge on the grounds that we did that it's something the court should consider law and well on the  and granted all defendants twelve the motions to dismiss with prejudice that frames right at the outset what we were intending to appeal and then use at the outset the outset is when you file your notice  yes and it's not there it's not in the notice itself no and then don't be to form see it's the very first issue that we raise here by the trial court an application of the administration exception rule to opposing counsel's discussion about the order should be sealed we had an expert witness address that issue also which judge  truthfulness of the parties preparing the written report and why else would mr alomari and the counsel for their organization fly to new york to try to correct untruths in the report there were a lot relying that they would do so that their effort to correct the mistakes the false representations would be addressed if they did not rely on the truthfulness of those parties they would never have flown to new york they would have just let it go without objections and you will if we had the opportunity we can show in the drafts that be there were corrected drafts submitted by mr l mari and counsel for the free trade zone authority going to crabb and tag requesting specific changes and those changes were not materially addressed which is part of the part of the fraud claim in conclusion coun in conclusion we asked the court also to notice that right how sterling a third expert was not considered by judge buckwild we respectfully request the court reverse and revamped for the proceedings with a new judge in the district court thank you thank you will reserve decision