he doing i have no idea what this is feeling i don't know but this is a question the state of mind of another person has to be in the person who's posed to be in the side we really have quite a day here areas you know use experiences give us the pleasure of your company sit down have you ever been in a court th as a discovery sanction as a discovery sanction he refused to consider the statement of the minister of justice of dollars that statement addressed issues that went to a lack of subject matter jurisdiction and of course the court cannot ignore a lack of subject matter jurisdiction even as a discovery sanction let's look at the say in the last judge reggie's opinion the less time this case was up here that a sanction in the form of exclusion of evidence would be an entirely different matter than what the judge had done the first time around yes bar the defense yes and judge kogan was free i freely concede that judge kogan could have ignored the minister's statement on any issue other than subject matter jurisdiction when compared to compare it to what jurisdiction was the only issue that was an issue in that opinion that's what we were talking about well but you were also talking about evidence concerning ownership of different to impose a presumption that shifted the burden of proof but not appropriate to sprite certain kinds of evidence because the evidence that i submitted from the minister went to a unique issue lack of subject matter jurisdiction subject matter jurisdiction cannot be exercised as as a sanction is it is well but then but so did the evidentiary presumption go to subject measures diction that's what i'm questioning right and if you are suggesting that no sanction that has any impact whatsoever on factual determination is going to subject madras diction would be appropriate isn't that the essence of your argument yes that is the sanctions could be essentials could be imposed by excluding evidence that went to the merits by excluding evidence that went to other factual issues of the discovery that the sanction that was not provided that led to the sanction was exclusively discovery about subject madras diction it is that issue on which your client has failed to produce evidence that would be highly relevant to making the factual determinations about subject my jurisdiction until i produced the minister's statement of course which has a different character under vitamin c i see now that's a different argument i think and i want to i think there might want to see whether you are making that argument that it's not necessarily for example if we had here a case about diversity jurisdiction and one party refused to provide discovery about his or her domicile you would not suggest would you that it would be improper for a court to impose sanction precluding certain evidence that went to the subject of diversity i don't think i need to go that far now but isn't the real issue here that you're really contending is that under animal products if the the minister's statement is something special because it's not just a fact it's something that if it qualifies which is one issue under that doctor and  test that this court set but judge kogan i'm not challenging his degree degree of deference he refused to consider this at all yet but you see then it would that the minister's statement would be heard it seems to me to the same category of eviden fact as the parties statement that i am domiciled in massachusetts maybe maybe not right now here's how i look at vitamin c now it's a tiebreaker you have one side says here's the law of a foreign country the other s is no it's not it's something else and then the government comes in and breaks the tie and says well here's the real deal about our law and you must the court must defer to that yes we'll find out from the supreme court whether that's the correct way of looking at it yes but to supreme court may not reduce the minister's statement to the same level as just ordinary evidence it might be must usually differ you know so i think it we have to wait to see whether how much of a trump card that still is but nevertheless because it's a trump card and because it went to subject matter jurisdiction the judge hogan could not ignore it as a discovery sanction and i repeat i would like to contrast it with the chinese government statement which went to the merits chinese government said chinese government in that case is necessary and so what has been our was a period in any formal way in this proceeding it's yes it has it's submitted submitting us a statement is different from appearing as the party d let me ask you a different question what is the status of the proceedings in the district court my notes suggested that jury selection is scheduled for june twenty fifth and proceedings are ongoing is that correct that's right judge kogan want to take this case to trial not move for stay oh i would like to not antagonize a judge more than i have already there is absolutely no way judge kogan was going to grant to stay and i would merely antagonize him so i'm not complaining about that state of affairs because it was my strategic choice so  merely restores the unanimity with which the united states is supposed to speak on issues involving foreign relations most political branches have said that my client is owned by the government of belarus it's the state owned company now that you do branch is going to hold otherwise way way way way way way way no branch of government of the united states has intervened in this case at all direct no one has said that in the context of this litigation you have a kind of i mean first of all what issue is what is this entity there's some controversy over whether it's one thing or another thing and whether part of something with that same name is owned by the government or something else and we've got something on a website somewhere from the united states government we have it what  exactly when you say these the other branches of government this is not a case metaphysically not a case in which for example the state department has entered this case and stated any interest in it or said what it thinks about this you know i would you like us i'm saying that both brothers are saying that the legislative branch of the united states has made a pronouncement about the matter at issue in this case and the question is it hasn't and it's not but congress it's some scholars right yes did this record do we said it could do it went further than that in what sense it went further than that in that evidentiary sanctions that refusing to consider the minister's statement when it goes to subject matter jurisdiction and he's at least till today a trump card goes beyond quote evidentiary sanctions and i contrast this to what the chinese government did you submitted that letter from the bell loose ministry of justice to the district court after it issued is for sanction orders not run yes i submitted it on remand from this court timely on a motion to dismiss after dream and judge kogan set a schedule for my motion to dismiss the second amended complaint and i submitted the minister's statement timely in accordance with that schedule in response to judge carney's question about the amicus status we're agreed that there was no application by the blues government to appear as amicus you didn't file any such motion needs to be have wrecked and nobody else or refused to say that they should be nor was opposing level of an amicus filing of some sort they claim amicus status but my position is amicus status is not necessary it has never been necessary we followed the procedure used in united states versus pink i mean for all we know this is a i mean i'm not suggesting that malkin at this on your court but frankly thank you this is something we're close we're close said give me a chance the i mean this is the kind of document which in my former capacity as a resident of this great city i would have thought could have been pretty bad before notary public somewhere in washington h dog and why was it what why can't i believe that it was manufactured in washington hides submitted by the embassy on official letterhead and with a copy to the state department all right i mean if that doesn't prove the bona fides then you know i mean  not if you grew up in new york it doesn't matter if we followed the procedure used in pink which has never required in a pink yes yes that's a long time graham reaffirmed in our animal science two years ago understood right the process is the party asks its government for a statement of law and why don't they appear in some formal way which doesn't suggest that it was somewhere in jackson heights or washington heights i can't answer one of the heights i don't represent the government and what i can tell you is i read the cases and i followed the procedure and it's not the procedure that was used to find and see is that no but vitamin c doesn't say that's required vitamin c says there was a nose it's obviously sufficient but not vitamin c never says an oath is required and vitamin c doesn't say an appearance is required that's what happened there but it doesn't say it's required and vitamin c reaffirms pink which is where the lawyer for the party obtained the statement from the foreign government of law  sworn and submitted counsel submitted it as a as an exhibit to a declaration that's what i've done here and that's frankly what i've done repeatedly which i was just looking back at previous opinion yes which said that  alternatives sanctions were available quote one quoting an evidentiary presumption against defendants that withheld discovery that the withheld discovery would refute their claim that the n t case is an organ or instrumentality of bellers and to prohibiting defendants from offering further supporting evidence on that issue didn't say a thing about a sanction to prevent the offering of other evidence on the merits but that is measure stiction that is the issue on which we said the district court had overstepped by flatly precluding the defense of sovereign immunity let me read another story we said there were alternative things that could be done including prohibiting defendants from offering further supporting evidence on that issue yes but you also said in so far as defendants were denied f s i immunity dot dot dot as a discovery sanction the concern rises that a district court may have conferred subject jurisdiction on itself where it may have been lacking right that's exactly what happened but what you're saying is in effect most same thing as saying that a party may not be sanctioned to preclude evidence about what's the difference is difference is vitamin c as we discussed five or ten minutes ago ok so that's the that's the real the real point issues are mashed in my view that it goes to subject this is a special kind of statement that is not evidence because maybe it wouldn't even be admissible as evidence in the form in which it is but the funder balt on letterhead stationary from the embassy is something entirely different than evidence that can be precluded yes precisely we'll see whether the way i  and in what way do any of these orders resolve an important issue completely separate from the merits of that well the threshold sovereign immunity determination is immediately appeal under the prior panel's decision and this court and  let me go to this point about the organ factor which is distinct from the ownership factor and the minister's statement largely goes to ownership we made a submission in the district court which showed prime aphasia that we satisfy the five filler factors for organ status in opposition the plaintiffs submitted nothing nor did they challenge any of the translations on those issues in this court the plaintiffs point to nothing i don't understand why i don't went on that record i made a record that this court said was prime afresh is sufficient and there's no rebuttal there's no opposition judge kogan lumped the two together and that's an error let's look at what he let's look at what judge kogan said here  act and is not majority owned or an organ now that last phrase is a non sequitur just because bell left deccan is not majority owned doesn't mean it's not an organ the factors are different and in this case the  record that my client satisfies the organ factors is undisputed and i've argued that in the district court and i've argued and no one's ever told me when i'm wrong i realize everybody's angry that we didn't produce discovery but it's wait when you find out ok thank you under sanctions of the united states either way as we don't know who that person east but even if you mean this statement is authentic even assuming that all issue was not before the court last time and we've aired that out now i'm happy to talk about it further but the prior panel decision does not decide that point second point that the prior panel decision does not decide was the lack of removal jurisdiction judge kogan decision saying that my client is not an agency or instrumentality of the republic of bellers has certain consequences and one of them is he's not allowed to exercise diversity jurisdiction which he's doing because if you remove a case on grounds of my client remove this case on one ground and it didn't one of your clients for move the case on grounds of diversity yes but we have to distinguish the two different companies so one company goes back to state court and the other companies days in federal court maybe something that mr is also might not like but that's that can happen yes but equally equally under the why do we have by the way dependent appellate jurisdiction over that that's not intertwined in any way with the issues that you're primarily raising and i don't think it's something that goes to the subject matter jurisdiction  goes to the technicalities of removal you know it goes according to lupo and a case that your honor wrote a ranch you know as a district judge it goes to it goes to subject to get reversed from time to time and i was i'm not sure that i was necessarily right now but there you have faithfully followed lupo because lupo says because the defendant failed in in its notice of removal to even raise the issue of diversity jurisdiction we lacked subject matter jurisdiction over the present case and so it's not a technicality judge kogan is doing that's error and that was not at all part of the prior record and that's something that arose strictly out of the new to the current decision that's on appeal now let me go finally to this point that mr as also was making about a judge brown is made about so i think he said washington heights forgive me for being a little slow on the uptick there i didn't grasp what you were saying but we have here documents that are on the official letterhead of these government agencies we have a post deals signed on to the hague convention and if judge kogan had followed normal procedures then any of these defects i would have had an opportunity to cure but judge kogan reached out and plucked this issue out soon as ponting i made a motion filing these ministers statements on aug sixteenth on aug twenty two six days later he he just reached out and plucked that issue out and special treatment and said that's wrong mr cruz was wrong that's out of the case so i never had an opportunity to be heard to to have the other side say here are the defects and then a normal practice i would come in on a reply and sack and cure those but use dealt with sanctions cases before where district judges go too far and i think and you've said you need to be cautious about that because of the concentration of power i think plucking this issue out soon as a mere six days after i raised it shows that my client and the prior case and they drafted this and how did they get it to the embassy gave it to me to meet right yes by hand the embassy gave it to me and they do then consider  going to present this to the court yes i thought very hard she's right i thought very hard about that and i did what pink requires you know there has never been a requirement that the foreign country appear and as you didn't suggest to them any of anything other than the preparation of this letter correct and this and this topic not right and as the minister of justice of belarus in a position to determine questions of american law under the f know of course not but that's not what he's speaking to when i speak is giving legal conclusions of various types and is being descriptive of it's a state organization subordinated to it's a state association he refers to individual valorous and how this client company is organized under the law of bellers he's not stating us legal conclusions i mean i point to the following don't have to is a state organisation subordinated to the government of the republic that goes to a filler factor and you know that's a statement of validation we're not new york not us law in accordance with the legislation of the republic of belarus l f dechen is vested with a number of state puc functions like control over the licenses of petro chemical companies that are in fact primarily are predominantly privately owned i think it does i mean i do first of all i think this whole idea that there are two companies is preposterous and not all supported by any of the evidence or by this what about that letter itself saying that this is a far flung enterprise that does all these various things and petrochemicals etc etc it only has one hundred sixty five employees it's the discover record shows what's going on here you don't have to is the state company and it supervises all these other companies that manufacture things which some of which are state owned some of which are commercially i don't that's into that's in the discovery that we provide it so i missed your argument really is mr seltzer sued the wrong company no misuse also sued the one company that exists he filed an act and all those other companies that you just said supervises well right but he doesn't have a claim against those companies those companies are all have all different names of all different duties they do lots of different things they're not subsidiaries why couldn't all that be provided in discovery so that we would know those facts we don't we don't know any of that you just said that but i don't see anything in the record that describes what all those entities are and are and the very issue on which discovery was requested is the structure of this organization i understand but let's say and i'm not going to go into why i was unsuccessful in getting inducing participation in the discovery at that stage i have been very successful at this served but that's where he served process and this is only one company and he served that company and i'm representing him on the idea legal right i think perhaps i've worn out my welcome