skipped one of the steps required by the f s a and this court's precedents in the presence of other courts he skipped one of the steps specifically he failed to decide the oregon prong of my argument under section sixteen zero three b two under which an entity is a an agency or an instrumentality of a foreign state if it is either an organ or owned by the foreign state i made you had preserved only view ownership and said that you would bring up the organ later but also say that in effect that given the problems of translation and so that discovery was needed no he did not your honor i certainly made my showing on the organ factor i put in that material in march these rulings were in june so my record was complete worse sorry that kind of the dismissive judgment that we're reviewing is not based on such a decision of the out suffered immunity rather it's based on the fact that that defense was thrown out altogether so don't you have to first start by challenging whether the district court was correct in simply throwing out the defense is a sanction i think the validity of the sanction depends on the underlying discovery  the underlying issue is whether the court should have granted my motion to dismiss as that so i mean if you were challenging that discovery order you should have sought leave to appeal that i don't know how you just ignore it and  sanction the monetary sanctions order because phebe month with the first two orders the discovery order and the monetary sanctions order provide the foundation for the appealable order you can't give meaningful review to the one without giving review to the other two  we could for instance say that the order striking the defense is incorrect because vets should not be done until even if discovery is proper that should not be done until any number of other things are done but that the monetary sanction might be all right is this working yes it is working yes your argument that decision along those lines  be made that's true but the point here is it all comes back to the failure to address the oregon point we disagreed with you that you were showing was so potent on the organ branch that no discovery is necessary suppose it seemed to us that there were disputed issues of fact about that what do we do then well in that case you would go to that first of all i don't see how you could say that because i submitted purely issues of law provisions of law that if you submitted them based on the affidavit of somebody who works for your company there's no intervention here and no  t but we don't know that that's true we don't know it's disputed whether they're accurately translated it's disputed whether they're just excerpts from decrees and not full text of decrees what white why is that somehow unchallengable it's unchallengable because i submitted statutes and executive branch resolutions the translation of which on the organ issue are not disputed all of his disputes on translation go to the ownership issue and there is by the way it's a mission from the minister of justice well there are the now but that's another complication because that only turns up very because so be laded leave that comes to us let's put that aside for one moment and let's get back to my question suppose we thought that there were disputed issues of fact about the organ aspect what should we do then we sent back to the district courts that you can have more discovery wondered on that issue two or is there still some error because the lynch is question if we don't agree with you and think discovery was appropriate you know i know you don't agree with that but if we don't agree with you and think this gover appropriate what do we do then do we say that ok discovery was appropriate in the sanctions or appropriate or arbor some sanctions had mike we appropriate and some of our sanctions are not appropriate flouted the discovery orders and so to that extent it imposed a sanction if we were to agree that the district court could order discovery to resolve these questions of fact could it in light of your refusal to comply sanction you by dismissing the sovereign immunity defense that has that power but i would hope you agree that it has the power to dismiss what is basically a question of jer's diction i can't dispute the language of rule thirty seven it's one of the sanctions that's on the menu i five but i would hope that i'd be heard again and make some effort to make this discovery invoke the hague convention perhaps there are other remedies the but thirty seven can also be understood to dismiss never it's defense is not jurisdictional defense is a question i may ask your adversary but as i understand it you're not raising that argument well i haven't so far and it's a distinction that i haven't explored but i would sovereign immunity is tantamount to deciding that issue and therefore would implicate the collateral order doctrine is there and is that question of first impression low or is there some authority that's addressed address that because i could certainly see an argument of the defense of sovereign immunity of the state of new york and the court health pardon me striking an affirmative defense is interlocutory except in those rare situations where the defense asserts not merely immunity from judgment but immunity from the the analytic framework for this type of case he ordered discovery sue is pumped and he said in doing so there's a preference even a requirement for jurisdictional discovery the law is exactly the opposite under the f exactly the opposite the presumption against discovery then when you are to discovery for the second time that the order that led to the sanctions he said the documents are discoverable because they are clearly relevant to the defense that's the language of it was proper in this stage of the game in discovery for the district court to strike the defense of soft music that's what i would like you to focus on the other words you're making lots of good arguments and i'm not sure i buy them that's an argument that is important to me so i hope you find some time to focus and make may i be sure i understand your honour's it's a question goes to the following scenario the court holds that discovery was proper yet striking the defense was an excessive sanction that's a question ok of whether under the circumstances at this time that sanction was the question i was pursuing with mr caruso that i want to ask you is that sovereign immunity is a defense to the court's jurisdiction if the district  if the defendants are entitled to sovereign immunity the court has no jurisdiction unless it comes within a case how does the court dismiss a sovereign immunity dismissed the sovereign immunity defense which was not and not a decision on the merits he never decided whether they had sovereign immunity or didn't he said that defense is going to be thrown out not  heard several a decision made it would have to look at the facts before it could perhaps draw adverse inference is against parties who didn't comply with discovery i mean i'm just throwing  comply with discovery by the very fact of his situation he cannot do you know whether various sovereign immunity or not because he said i need discovery to find it out so at that point as a sanction he froze out sovereign immunity now that's my question that is troublesome to us because that was were very fitting with the discovery was at the sanction level of the jurisdiction of question for which he was doing discovery many could have but he did do money sanctions he could have done more money sanctions well the presider gave us a list of things that he might have done by way of sanctioning by way of getting discovery short of deciding the jurisdictional issue as a sanction and what if  is to the defendants you did not therefore i will draw an adverse inference that what you would have produced would have been adverse to the law does this sometimes and i'm asking you whether that act would have been done and then  there was adverse facts he would have ruled on the totality of the record as to whether the defendants had sovereign immunity or not but that without at least decides the court's jurisdiction it doesn't avoid the question as a sanction my view that he you know it might have been a decision favorable to you but it would have been reached in a different way without avoiding the court deciding it over sanctions that could have been drawn you could have been before going that far when one of the questions we always have with respect to sanctions is says number of employees one hundred sixty five now we're talking well of a company which gets canned it and thirty thousand employees responsible for one one of our companies is an american company one is not and so on the whole question of sovereign immunity is a very complex one which is why the district court ordered discovery on it and what our question is what  he's suggesting that there is no jurisdiction for a court to order discovery once when a colorable claim of sovereign immunity is been raised fifty that's part of what asking that the district court could not order discovery to sort to relieve our sovereign immunity issue it had to do it based on the papers the parties produced and then assigning the bird says the law they have a burden of proving or do they have the burden of introducing enough evidence so video seems likely that they have it at which point the burden might shift to you that is it often is a case with an initial burden of pleading an initial burden of allegations and of bringing some facts are wrong one side but that that is enough vent to shift the burden to view the other side that happens all the time burden point because i think it's very important and i believe the law as well established robinson case says this for this court and there are a least two or three others a lot of stock for the names at the moment the party asserting sovereign immunity has the burden of going forward with evidence and making a prime aphasia case of its status as a foreign state once the prime official case is made the burden shifts to the plaintiff to show that either there's an exception to sovereign immunity or some other reason why sovereign immunity shouldn't apply the ultimate burden of persuasion rests on me the party asserting sovereign immunity i carry my burden i made a submission of seventeen provisions  the all of the assets are owned by the republic of belarus and that the five organ factors all apply then there are it's created for a national purpose to improve petroleum sector they've got regular to my client regulatory powers to set prices and license trade etc i don't think that can be the slightest doubt that i carried my burden of production then it shifts to mr bizos or and i he put in nothing at that point the to avoid the burdens of discovering the burdens of litigation on a party that has shown that it has at least the prime aphasia case of sovereignty and i showed that judge hogan the f s a requires a certain sequencing a are inconsistent or do you say that this might be a case and then the question is was it this way in this case which you say no or was it not in which he case i think that there is it certainly is a possibility that there could be jurisdictional discovery in it in a case even when there's been a prime official showing if the dispute is one of fact but here the dispute is not one of fact i've played a purely legal submission and intentionally so so  that if there is no dispute on the law because he hasn't challenge that but even if there were a dispute on the law it doesn't get you discovery you could be case it could be such a case your honor yes but only if there was a dispute on the facts and judge may i just go to one point that you made i think it's extremely important you described maybe criticised mice mission as merely a party submission i'm going to suggest to you that in this no court has ever suggested that under the  is here it you know this is what we believe our law provides i don't know that that is something that he would be able to challenge him but if a party comes in and says here's a statute of belarus isn't there a question as to whether that is or is not a legitimate statute is there not a question as to whether it's been repealed since the law has changed it but he didn't put in any shelling into that respect in that respect his argument was that these laws are unreliable that sort of an actually consists of two components and that it's effectively owned by its member companies like so these are the questions that then lead judge kogan to say well there needed to be discovery on the structure and organization of these companies first of all that ignores the organ from on which there is no dispute about my translations and which standing alone is sufficient to grant my motion but let me talk about let me respond to your hon question of when they don't put in a competing translation it's a question of law i mean here's my point at this stage after i carried my promise as your burden was dissolved his burden is to put in a competing translation not simply to dispute mine and he didn't do that and that's why i think there's no question of fact there ok it would be a question of fact you are saying that the question of fact was not raised but it is a question of fact it could be then it is up to whether the judge to this was like i get it i'm a discovery on this point the discovery judge ordered me to answer into rather during number seven inquiring about the subsidiaries of concerned don't have to recommend here's the answer none of the constituent these of concerned the left is a subsidiary concerned tekken does not own a stock or any assets of those companies the constituent entities or independent legal entities over which don't have to exercise his state related management and administrative responsibilities that's why it should be obvious that there are a hundred sixty five employees at this entity that does the supervision i think all these houses of people who work for separate companies that my client doesn't own so much for disk strawn so  if i asked you to address something in your reply indeed and your red light has been on a very long time could you please turn to what i guess i will do and i think that that's a very good point lesser sanctions should have been considered and believe i we've got this dovetails with what judge ragin was saying about there's a lack of jurisdiction to impose sanctions or put affirmatively the court has to first find that it has subject matter jurisdiction and for that matter  personal jurisdiction in order to impose sanctions and judge kogan never made those findings he never really said no strike really he never said why he couldn't rule on the organ pronk for example so i think at the very least there should be remained with instructions for judge kogan to proceed as required by the f s a are you saying that the judge can't impose any sanctions at all if a question of jurisdiction is uncertain and requires discovery that is there's a difference between the monetary sanctions which do not destroy the jurisdiction do not good vs sense of a thing and the sanction that decides of a question of jurisdiction in a way that you know i'm not saying that can't be any sanctions but i'm would agree with what judge reggie said that there must be sanctions short of dismiss of the jurisdictional defense because the court first has to have jurisdiction when last questions where do we stand with the question of whether even if the end key is owned by or an organ it was involved in commercial activity right that we don't have that answer right that's not before this court yeah i mean so this would be if we were to agree with all of your arguments this would be a ring and that issue would still be before the district court right decisively ok precisely what one last point if your honor is go if the court is going to accept this concept that a party submission is insufficient i suggest that that would be sufficiently knew that there should remain and to give me a chance to make a government submission that's never been required in a case like this but if you are going to appreciate every man for opportunity thank you thank you very much thank you but take the matter injured