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Case number 19-7117, Fadi Al-Salamin, a balance versus Bank of Palestine PLC.

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Mr. Blakely for the balance, Ms.

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Gateley for the appellee.

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Blakely.

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Yes, sir.

[00:00:18] Speaker 01:
Good morning.

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My name is William Blakely.

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I'm here for the appellant, Fadi Al-Salamim.

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I'd like to reserve two minutes, if I could, for my rebuttal.

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The district court order should be reversed for two reasons.

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Number one, Mr. Al-Salamim has satisfied the long arm statute, and he's satisfied at least one, if not more, of the plus factor set forth in 423A3, the long arm statute.

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There's been evidence of thousands of contacts in the District of Columbia, tens of millions of dollars were exchanged by their customers, and there's been a persistent course of conduct with the International Finance Corporation.

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Now, the second basis for our position that the District Court should be reversed

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is the position it took with the International Finance Corporation.

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The government contacts exception that was relied upon does not apply to the International Finance Corporation for two reasons.

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One, we have a non-resident alien and it doesn't apply to a non-resident alien.

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And then number two, the International Finance Corporation itself

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is not a US federal instrumentality.

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As a result, we believe that- Mr. Blakely, I have a question about the long-arm statute.

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You were relying on 13-423-A4A, which requires torsion injury in the district caused by an act of omission outside the district and

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It requires, as you refer to the plus factors, regularly doing or soliciting business or engaging in a persistent course of conduct or driving substantial revenue from goods used or consumed or services in the district.

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So those are the elements.

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But then looking at 14423B, it says, when jurisdiction of a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section.

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may be asserted against him.

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So does the claim for relief have to arise in part from those plus factor contacts?

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Yes, thank you, John.

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The answer is no.

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Crane versus Carr, the leading case in the United States Court of Appeals for the District of Columbia, makes it really clear that no, there does not have to be that connection.

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And so the answer is no.

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And I mean, that's sort of what I thought you were going to say, but it makes it really difficult for

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to understand what role those plus factor elements are playing and how to understand them.

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If they're not, they're clearly not the kind of robust persistent course of conduct that would be required to support general personal jurisdiction as a constitutional matter.

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And they're not, it sounds like even the persistent course of conduct related to the claim that would be required for

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specific personal jurisdiction as a constitutional matter.

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And so I'm just trying to figure out, and do you have a theory of what role they play?

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Because it's very general catch-all language.

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It's hard to know what kinds of conduct might be reasonably thought to meet.

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Yes, thank you.

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I've looked at the conduct, of course, set forth in crane versus car.

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And in our case, we have many contacts.

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They are, for example, as I mentioned earlier, we had the contacts by the shareholders.

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We had contacts by depositors.

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There were trips to the District of Columbia by very, very senior people.

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They were, in fact, the chairman and general manager of the bank.

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the Chief International Relations Officer, the Chief Business Development Officer, and these took place over a number of years.

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And the International Finance Corporation contacts were also over a number of years.

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And former Justice Ginsburg, when she wrote the Crane vs. Carter decision, set forth the factors of

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you know, of the defendant.

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And there were exchanges, you know, with zoo animals.

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And there was a publication.

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And we went through all of those factors.

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And we have significant contact in the District of Columbia.

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But it's really clear in Crane versus Connor, they do not have to be directly related to the injury.

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So we have a decent.

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So one way to understand it is that the

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The plus factor is simply a decision by the legislature that even if, as a constitutional matter, there were a tort happening within the district caused by conduct outside, that if that person outside the district

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had so you know never been in the district never planned to be in the district no relationship with no benefit from the district it just wouldn't really be fair and there's a legislative judgment to have them uh have to appear in the district uh and if that's the function that it's playing then it would seem that a lesser level of continuous context might actually satisfy that policy and truth

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Here's a sophisticated defendant that is coming for all kinds of purposes to the district.

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And so the convenience, the legislative judgment, not the constitutional judgment about convenience might be met.

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So under that theory, when you're statutory argument, the difficulty I have is that it seems to fall so far short on constitutional grounds.

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And so my question really is, how did this case get teed up this way?

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Was there litigation or concessions or agreement or understanding about whether under Calder versus Jones, this defamation claim was constitutionally sufficient to bring defendant into the district?

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I don't know.

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I wasn't in the case below, Your Honor, but I do believe you are correct that there does not have to be a connection between the injury in DC, but there does have to be conduct in DC.

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And that's what we have.

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We have years of conduct.

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not only persistently pursued by the bank for purposes of raising money, I think the judge below was confused with international relations versus investor relations, the, quote, IR contacts, if you will.

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No, these are investor relations that the bank was engaged in over a number of years in a transplant

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I mean, we don't have an exception, but one of the rationales for the government context exception seems to be if you're coming just to do government business, coming from another state because the United States is the seat of government, it seems like there could be an analogous doctrine that if you're coming from another country only because the World Bank, IFC, IMF are cited

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They could be cited in the Azores, but they're cited here that that maybe shouldn't count.

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And then I guess the counter argument that you make is, well, wait a minute, this is all commercial.

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But I think that's an open question, no?

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Well, it is commercial.

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There is a 4.73% ownership by the International Finance Corporation of the entire bank.

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And that's significant.

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In addition to the shareholders that they had, they had other shareholders, they had also deposits.

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And it was, the way I look at it, Judge, is this.

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The plus factors, they don't provide jurisdiction.

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We have jurisdiction on the long arm statute because we have two things.

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One, we have a non, out of DC, just happens in this case, there's an alien, or hurting,

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A DC resident and then the plus factors are added in as a way of filtering out those cases where the contacts are not that significant.

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So in this case, what the judge did.

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She did what we refer to as well.

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She should have taken an aggregate approach.

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to this whole analysis.

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She didn't.

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The judge looked at, understandably, but she'd look at the website or the judge looked at other shareholders.

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And then they would discount that contact and then say, well, there isn't enough here.

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There isn't enough there.

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Website isn't enough.

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But collectively and in the aggregate, there were substantial contacts.

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And what about the, I know you weren't counsel then, but you have the,

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the responsibility now to defend this appeal as it comes to us on the record, you say now that we should exclude the so-called government contacts, but when the district judge ruled that discovery would be limited and not, well, initially the district court allowed discovery, then when the government said, no, no, we will not afford discovery into government context,

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El Salamein did never ask to move to compel, did he?

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He didn't move to compel and say, well, no, you should provide that information because it's relevant and it's within the scope of the discovery.

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I refer to this as the shield and sword argument, because the truth is here, we have an individual DC resident who is hurt.

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And the bank took a cover behind, if you will, the judge's order.

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And the judge's order was really clear.

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As a matter of law, we are not going to consider any of these contacts by this foreign alien in the District of Columbia, period.

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So the answer, though, to your point is,

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Yes, there was not a motion to compel motion to reconsideration, but there also was not was a motion for protective order by the bank.

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I mean, this is The judge ruled and it's almost like there's somehow a mandatory interlocutory appeal requirement.

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I don't believe there is judge will do respect to my opposing counsel.

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I don't believe there was a requirement to do that.

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And as we know, it's expensive and the judge was really clear on how she was ruling.

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So the

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uh... we don't have a couple minutes left so i want to point out that we don't have any any and that's left uh... there's anything about comment for a bottle okay fine thank you thank you all right we'll hear from his gaitly side good morning your honor and uh... they think the court my name is mary gailey and i represent the appellee the bank of palestine uh... your honor

[00:12:10] Speaker 04:
I want to cover three principal points with the court today.

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And really, the district court's dismissal of this case for lack of personal jurisdiction should be affirmed.

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First, the contact found by the district court after granting extensive jurisdictional discovery on the topics requested by the appellant did not satisfy the long-arm statute, which was Section 13-423-84, not 83, as the appellee's counsel suggested.

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Second, Mr. El-Salamim corefitted the arguments raised related to the government contact exception that he raised for the first time in this appeal.

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Third, the government contact exception applies in the back of this case.

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Well, the government, I mean, the district judge was very clear about saying you can do discovery, but nothing about governmental or intergovernmental entities, World Bank.

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So he does have a point we supposed to butt heads further with the district judge or is that seems like that would ordinarily be enough to preserve it the combination of that ruling and and a broader request on elsewhere means part Yes, your honor.

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I think that if you look carefully at the set of facts, Mr. Al Salameen cross-moved for limited jurisdictional discovery.

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He never submitted the actual interrogatories or document requests that he requested.

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He submitted topics.

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The bank opposed the motion, the cross-motion for jurisdictional discovery.

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And importantly, Mr. Al Salameen and his counsel never filed a reply brief to that cross-motion.

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I mean, to the opposition that the bank filed.

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And the bank raised the government contact exception in that opposition.

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That's at JA 112.

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And you can see also at JA 91 is where that cross motion and the general topics that were raised.

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Excuse me.

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What's the date of that motion, sir?

[00:14:08] Speaker 04:
The date of the cross-motion?

[00:14:12] Speaker 00:
No, of your response there.

[00:14:14] Speaker 00:
What was the date you just said?

[00:14:16] Speaker 04:
Oh, yes, Your Honor.

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112.

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So the district judge ordered that the bank consolidate its reply memorandum in support of the motions dismissed at the same time as it opposed the cross-motion.

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What's the date?

[00:14:34] Speaker 04:
August 30th, 2018, JA95.

[00:14:39] Speaker 02:
Do you have a sense, you were involved in the litigation before?

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Yes, yes.

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And do you have a sense of how it was that the statutory issue, I mean, it makes sense that the statutory issue would be decided before the constitutional issue, but it just strikes me that there really is a question whether there's a claim here, a defamation claim that would constitutionally

[00:15:07] Speaker 02:
be raised in the DC forum given Calder versus Jones.

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Has that been conceded?

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I feel like I've read something that was conceded.

[00:15:18] Speaker 04:
No, it was not conceded, Your Honor.

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If you look at the lower court brief, the due process issue was briefed.

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And I should point out that when the plaintiff brought this case, Mr. Afalameen, he never specified any provision of the long arm statute.

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We moved to dismiss the case, saying there was no general or specific jurisdiction under any of the sections of it, and no due process.

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And so that's briefed in our initial motion to dismiss at JA 36-37.

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Mr. Al Salameen addressed the due process in his brief, and then the bank addressed it again in reply at JA 107-109.

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And it's our position that this case would not, even under all the facts and circumstances that Mr. Al-Salamun is put forward, satisfy due process, constitutional due process.

[00:16:10] Speaker 02:
So here's my question for you.

[00:16:12] Speaker 02:
Assuming a claim, a defamation claim, that satisfies Calder v. Jones,

[00:16:22] Speaker 02:
and Keaton versus Hussler, and as a constitutional matter, and obviously it satisfies the long arm statute, the subpart A that requires tortious conduct outside the forum that's causing harm within, then the only battleground is the plus factor.

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And wouldn't it make sense to read, in that case, to read the plus factor the way I was suggesting as a relatively minimal check

[00:16:50] Speaker 02:
so that the 18-year-old blogger in New Caledonia isn't hailed into court in DC, but the Bank of Palestine is.

[00:17:05] Speaker 02:
you're i don't think that that has been interpreted i think that's what factors are i think there are and will be proud of concerns when the contact with the foreign don't relate to the claim uh... and i'm positive situation in which the the context are the the defamation or the tortious conduct itself because it's targeted at the forum and and assuming and i'm not saying that that that's this case and hasn't bereaved but if it were the case that that

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that the brunt of the harm, the situs of the harm is the forum.

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So you have, you know, Shirley Jones, just like in color versus Jones in DC.

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And the question, my question is, what does the DC, you know, the legislation mean in having those plus factors?

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If that might be the out of jurisdiction, out of farm tort that's causing effect in the,

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in the forum.

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And I'm thinking it's, as I said, sort of a reciprocity.

[00:18:01] Speaker 02:
You're coming and you're benefiting from the law here.

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And so we're going to hail you into court here.

[00:18:07] Speaker 02:
But if you're really off the teenager in New Caledonia, then even though constitutionally under Calderas-Jones, we could hail you into court here.

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We, the District of Columbia, don't want to go there.

[00:18:21] Speaker 04:
Yeah, Your Honor.

[00:18:23] Speaker 04:
Based on the fact that it's not that kind of hypothetical that you've posited.

[00:18:27] Speaker 04:
No, I understand that position.

[00:18:29] Speaker 02:
I'm trying to get your, your, you know, help me in understanding what how we how we should see these plus factors and what their function is I think you have to there's precedent in this court.

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repeated precedent in this court in the Forrest v. Ralph case where you have to first look at the statutory factors and then you turn to due process if you find that the statutory factors are met.

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And so I would submit to the court that the statutory factors haven't been met in this case and there's a perception that has been suggested by the

[00:19:07] Speaker 04:
the appellant that the district judge didn't carefully consider these factors, as has been done by many other courts in this jurisdiction.

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And I think that's really not a fair reading of what the district judge did.

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The statute itself is set up with these three requirements.

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And when you look at the words, regular, modified, does, or solicits business, engages in any other persistent course of conduct.

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substantial is modifying, deriving the revenue.

[00:19:36] Speaker 04:
So the court had to look, you know, at the various factors, as has every, you know, court that I've read and reading a lot of these cases.

[00:19:43] Speaker 04:
If you look at the Berman, the worldwide industries case, the judge does the exact same thing.

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You have to look at these kinds of categories and consider whether or not they even apply.

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And that's what this district judge did.

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She did it carefully.

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And I would also note, if you look at, for example, Mr. Al Salameen supplemental brief at Joint Appendix 889 through 894, Mr. Al Salameen groups these contacts in the exact same way that the judge analyzed it.

[00:20:12] Speaker 04:
And I would submit that she looked at the quality and nature of the contacts in each of these.

[00:20:17] Speaker 04:
So the fact that you have four customers out of almost a million customers is not a significant contact with the District of Columbia.

[00:20:26] Speaker 04:
There's no evidence that the bank was acting in the District of Columbia through having those four customers incidentally located in the District of Columbia.

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In fact, what the evidence shows

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is that those interactions were occurring in Palestine.

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That's why NGOs or something like that would even have an account with the Bank of Palestine because they have operations in Palestine.

[00:20:50] Speaker 04:
So I don't think any of the facts that they've submitted under the existing law of this circuit, for example, 30 emails written over a period of four years to a global email list that did not target the District of Columbia, did not solicit business,

[00:21:05] Speaker 04:
sent to a small group of people in the District of Columbia, which the bank credited as informational, not solicitation.

[00:21:14] Speaker 04:
The transactions that are referred to, there was only one transaction that occurred via the website for a total of $578.

[00:21:22] Speaker 04:
And importantly, the amount of revenue from those four customers over the four years that the judge gave jurisdictional discovery was a mere $6,685.

[00:21:32] Speaker 04:
dollars, which pales in comparison to the net commission and interest revenue of the bank, which is over 100 million.

[00:21:39] Speaker 04:
So there's no basis on which you can accumulate these factors to say that the modifiers in the statute are satisfied, the persistent, the substantial, or the regular.

[00:21:50] Speaker 04:
Those things just do not apply.

[00:21:52] Speaker 04:
In the limited amount of time, I'd like to cover the government contact exception.

[00:21:59] Speaker 04:
The court will indulge me.

[00:22:00] Speaker 04:
First of all, I covered the forfeiture point.

[00:22:07] Speaker 04:
Our position is that they forfeited that.

[00:22:10] Speaker 04:
On the government contact exception, there's more than one purpose behind the government contact exception.

[00:22:17] Speaker 04:
You have, in the environmental research case, not only a First Amendment rights petition,

[00:22:22] Speaker 04:
but whatever we want to call it, a recognition of an interest that the District of Columbia does not want to turn into a national judicial forum.

[00:22:30] Speaker 04:
I think that could be a policy.

[00:22:31] Speaker 04:
You can reflect on it as a policy decision by the DC legislature that the federal courts sitting in the District of Columbia are bound to accept.

[00:22:40] Speaker 04:
There's also the due process underpinnings that are at issue here that you've spoken about, Judge Pillard.

[00:22:47] Speaker 04:
If you look at the cases that the appellee relies upon, the Roseby Silver case,

[00:22:52] Speaker 04:
as well as Electrotech Skillman, they both carve out that in cases in which the due process interest is exactly an issue, when you have the contacts that don't relate to the claims in this context, which is what we have here,

[00:23:07] Speaker 04:
in particular, that's when you have the sensitive need for the government contact exception.

[00:23:11] Speaker 04:
So there is a due process underway.

[00:23:13] Speaker 02:
Ms.

[00:23:13] Speaker 02:
Gailey, as you say, A, the constitutional claim has not been adjudicated by the district court, and B, if you assume, as we can in the context of defamation, that an out of forum tort with in-forum effects can, at least the Supreme Court has recognized, that that alone, without further context, can satisfy due process.

[00:23:37] Speaker 00:
I don't understand.

[00:23:38] Speaker 00:
Can I ask here?

[00:23:39] Speaker 00:
I'm not clear about this.

[00:23:42] Speaker 00:
So in Crane, the court held that DC did not intentionally go all the way up to the limits of due process.

[00:23:53] Speaker 00:
Isn't it the case that even if the defamation claim alone would have been enough, that's not the question before us.

[00:24:01] Speaker 00:
It still has to reach the plus factors.

[00:24:04] Speaker 00:
And in Cranes, it also says that those require, because of the use of persistent and regular, et cetera, that there be a continuing set of contacts, right?

[00:24:16] Speaker 00:
And that's all there is to it.

[00:24:19] Speaker 00:
The DC Court of Appeals has already explained to us, Ms.

[00:24:24] Speaker 00:
Gately, what the meaning of that section is.

[00:24:27] Speaker 00:
Am I wrong about that?

[00:24:29] Speaker 04:
Yes, I would agree with you, Judge.

[00:24:31] Speaker 00:
Now, I'd like to ask a question about the forfeiture issue.

[00:24:35] Speaker 00:
And I want to understand the timeline for a minute.

[00:24:39] Speaker 00:
So the district court permitted Elsa Lameen to conduct discovery, excluding the contacts with the government.

[00:24:47] Speaker 00:
That was in November of 2018.

[00:24:48] Speaker 00:
Is that right?

[00:24:50] Speaker 00:
That's the JA-6.

[00:24:51] Speaker 00:
That's the court's permission to conduct discovery.

[00:24:55] Speaker 00:
Then in 2019, the bank objected

[00:24:59] Speaker 00:
to the extent that the discovery request sought information on the bank's interactions.

[00:25:04] Speaker 00:
That's JA 176.

[00:25:07] Speaker 00:
And at that point, also Lameen doesn't move to compel or otherwise to object.

[00:25:14] Speaker 00:
But in February of 2019, he files a supplemental brief opposing the motion to dismiss.

[00:25:20] Speaker 00:
And he doesn't discuss the government's contracts exception at all.

[00:25:25] Speaker 00:
No, that's correct.

[00:25:26] Speaker 00:
That's JA 893.

[00:25:28] Speaker 00:
Well, wouldn't that be the place to raise the issue?

[00:25:31] Speaker 00:
Just not a motion to reconsider or anything like that.

[00:25:33] Speaker 00:
That's a opposition to the motion to dismiss.

[00:25:39] Speaker 04:
That's correct, Your Honor.

[00:25:40] Speaker 04:
The district court allowed the parties, after jurisdictional discovery was completed, to file supplemental briefs.

[00:25:47] Speaker 04:
And there was no contesting the government contact act of patient at all by Mr. Al Salameen.

[00:25:55] Speaker 04:
in any form to the district judge.

[00:25:57] Speaker 04:
You simply don't find the arguments that are now being raised on appeal ever raised to the district court.

[00:26:03] Speaker 04:
And therefore she couldn't pass on those things.

[00:26:05] Speaker 04:
And this is exactly the kind of case that should pass.

[00:26:10] Speaker 04:
What was never raised?

[00:26:11] Speaker 04:
The non-resident alien application, the two commercial, if you will, that the government contacts can't be applied in a

[00:26:20] Speaker 04:
in what they characterize as a commercial way, although that's not even accurate under the case law, Your Honor.

[00:26:27] Speaker 04:
Commercial, if you're relating to the core mission of the government agency, which in the case of the IFC, the mission is to partner with private sector to assist with development in developing in poor countries.

[00:26:41] Speaker 04:
So coming to the District of Columbia to interact with a government agency like OPIC or the World Bank and the IFC,

[00:26:49] Speaker 04:
are really the only place you can come to do that is the District of Columbia, and those contacts don't count against you whether or not they're characterized in the way that has been done by the Kelly in this case.

[00:27:03] Speaker 04:
I see that I'm well over time.

[00:27:05] Speaker 04:
You are.

[00:27:07] Speaker 00:
Let me just ask whether anybody else on the bench has any questions for you.

[00:27:10] Speaker 00:
No further questions.

[00:27:12] Speaker 00:
Okay.

[00:27:12] Speaker 00:
Thank you very much.

[00:27:13] Speaker 00:
Thank you, Your Honor.

[00:27:14] Speaker 00:
Does Mr. Blakely have any time left?

[00:27:17] Speaker 03:
Counsel was out of time.

[00:27:18] Speaker 00:
I'm sorry.

[00:27:20] Speaker 03:
Council was out of time.

[00:27:21] Speaker 00:
We'll give you two more minutes since we went over.

[00:27:25] Speaker 01:
Thank you, Your Honor.

[00:27:26] Speaker 01:
I'll be, I'll be brief, although that I know is somewhat of a mess no more sometimes with lawyers.

[00:27:31] Speaker 01:
The harm occurred here in the District of Columbia to a DC resident.

[00:27:34] Speaker 01:
I think that's really important.

[00:27:36] Speaker 01:
I think Mrs. Gailey is trying to set a new standard.

[00:27:38] Speaker 00:
I don't understand why that's relevant.

[00:27:40] Speaker 00:
The statute assumes that the harm

[00:27:43] Speaker 00:
occurs to a DC relevant resident.

[00:27:47] Speaker 00:
And the issue is, do you meet the plus factors?

[00:27:51] Speaker 01:
I would agree.

[00:27:52] Speaker 01:
Yes, Your Honor, that is exactly right.

[00:27:54] Speaker 01:
I mis-mentioned that because that's not really an issue before the court.

[00:27:58] Speaker 01:
So we are just going through these plus factors.

[00:28:00] Speaker 01:
And what it appears to me is that they're trying to layer in another requirement.

[00:28:05] Speaker 01:
The plus factors

[00:28:06] Speaker 01:
according to Crane versus Carr, which is the leading case, are to be evaluated, but they're not jurisdictional requirements.

[00:28:14] Speaker 00:
Jurisdiction is what they... You don't have, excuse me, you don't have jurisdiction if you don't have a means of achieving personal service.

[00:28:21] Speaker 00:
That's the purpose of the long arm statute.

[00:28:24] Speaker 00:
So if you don't meet the long arm statute, there's no jurisdiction.

[00:28:27] Speaker 00:
That's really all there is to this here.

[00:28:30] Speaker 00:
So I guess you can say they're not jurisdictional.

[00:28:33] Speaker 00:
They are jurisdictional.

[00:28:34] Speaker 00:
They may not be constitutionally required, but they're necessary for personal jurisdiction.

[00:28:38] Speaker 00:
Isn't that right?

[00:28:40] Speaker 01:
I think that is right.

[00:28:41] Speaker 01:
But the plus factors are not jurisdictional.

[00:28:44] Speaker 01:
Those are a filter.

[00:28:45] Speaker 00:
Excuse me.

[00:28:46] Speaker 00:
They are a filter.

[00:28:48] Speaker 00:
If you do not succeed in getting, you don't get jurisdiction because you can't get service.

[00:28:55] Speaker 00:
Isn't that right?

[00:28:58] Speaker 01:
Yeah, but service of process, you're referring to service of process?

[00:29:01] Speaker 00:
I'm talking about personal jurisdiction.

[00:29:02] Speaker 00:
You can't achieve personal jurisdiction without achieving service of process.

[00:29:07] Speaker 00:
And you can't achieve service of process unless you satisfy the long arm statute, right?

[00:29:14] Speaker 01:
Well, in this case, I think that's right.

[00:29:15] Speaker 01:
Yes, your honor.

[00:29:16] Speaker 00:
And in this case- One other question about the timeline question I was asking.

[00:29:20] Speaker 00:
At any point, any point in the district court, before the district court

[00:29:27] Speaker 00:
issues, it's 2018 effort orders with respect to discovery.

[00:29:41] Speaker 00:
Is there any point, or as Lamin argues, any point that the government contacts exception does not apply?

[00:29:51] Speaker 01:
He certainly, in terms of his assertions in the complaint, they are replete with arguments or allegations.

[00:29:58] Speaker 00:
I understand.

[00:29:59] Speaker 00:
As a matter of law, is there any point where you make the legal argument that any legal argument that the contacts for any reason should be, that the government contacts exception should not apply here?

[00:30:16] Speaker 01:
I wasn't talking.

[00:30:18] Speaker 01:
Yeah, I'm sorry?

[00:30:20] Speaker 01:
Yeah, no, I don't know the answer to that, Your Honor.

[00:30:22] Speaker 01:
I don't believe so, but I know that the judge's order was really clear and it limited discovery.

[00:30:28] Speaker 01:
And what we never had was a motion for a protective order by the bank to say that, hey, we're not going to produce these contacts.

[00:30:36] Speaker 01:
Following the order, the discovery, we don't have the

[00:30:41] Speaker 01:
the site to, but the discovery request that went out, they went out after the judge's order.

[00:30:47] Speaker 01:
There should have been a motion for protective order.

[00:30:51] Speaker 02:
I don't know, I mean, I do, I'm sympathetic to your point that it, you know, it's, it's what El Salamin asks for, but then when the bank in the cross motions for jurisdictional discovery, the bank argues that its contacts with IFC should be excluded, there is no reply brief there, which would be the perfect time to raise it.

[00:31:13] Speaker 02:
I mean, it might've even persuaded the district judge.

[00:31:16] Speaker 02:
And that's why we have these preservation requirements.

[00:31:19] Speaker 02:
So we're not sandbagging a trial judge who never was presented with the question, with any briefing on it.

[00:31:25] Speaker 02:
So we don't have any reply brief there.

[00:31:28] Speaker 02:
And when the bank raises it in objection to an interrogatory, then El Selamin doesn't move to compel the response to that interrogatory.

[00:31:37] Speaker 02:
For example, saying even if there's a government context exception, it doesn't apply to the IFC because that's commercial or something like that.

[00:31:47] Speaker 02:
motion to compel, and then in the post discovery supplemental briefs, nothing about, well, of course, we disagree with this, but we're preserving that.

[00:31:55] Speaker 02:
I mean, you don't have to butt heads with the district judge.

[00:31:59] Speaker 02:
But I think the question is, was the district judge ever fairly presented with a dispute over the legal applicability of this exception?

[00:32:09] Speaker 01:
Well, we believe that the judge was, but I think our position is pretty clear also that irrespective of the IFC, there were sufficient contacts in the District of Columbia to support jurisdiction, irrespective of the IFC.

[00:32:25] Speaker 01:
Yes.

[00:32:27] Speaker 01:
Thank you very much for your time.

[00:32:29] Speaker 00:
Thank you.

[00:32:30] Speaker 01:
Yes, you have, oh, I'm sorry.

[00:32:31] Speaker 00:
No, I just wanted to see whether any other judges had any questions.

[00:32:34] Speaker 00:
Apparently not.

[00:32:35] Speaker 00:
We'll take the matter under submission.

[00:32:36] Speaker 00:
Again, thank you for a very interesting argument this morning.

[00:32:39] Speaker 00:
Take care.