[00:00:00] Speaker 08:
Case number 22-7082, Bridie Capital Management LLC and Elliott Broidy versus Nicholas D. Musing et al.

[00:00:09] Speaker 08:
State of Qatar, a balance.

[00:00:10] Speaker 08:
Mr. Zients for the a balance, Mr. Zathar, I mean, Mr. Saunders for the appellees, jurisdiction issues, Mr. Benson for the appellees, Vienna Convention issues.

[00:00:22] Speaker 03:
Good morning, Council.

[00:00:23] Speaker 03:
Mr. Zients, please proceed when you're ready.

[00:00:25] Speaker 04:
Thank you, Your Honor.

[00:00:26] Speaker 04:
May I please the court?

[00:00:28] Speaker 04:
The district court made two important errors that harm Cutter's rights and interests as a sovereign.

[00:00:34] Speaker 04:
First, the court held that the Vienna Convention on Diplomatic Relations is categorically inapplicable to documents, archives, and correspondence whenever they are freely given to a non-mission party.

[00:00:46] Speaker 04:
Second, the court held that principles of international comedy are also categorically inapplicable when discovery is sought from a private party that is U.S.

[00:00:55] Speaker 04:
national.

[00:00:57] Speaker 04:
This court should reverse both rulings and remand with appropriate guidance for the district court to conduct a document by document assessment.

[00:01:06] Speaker 04:
In doing so, the court should reject two arguments that have been advanced to limit Cutter's protections.

[00:01:13] Speaker 02:
First, I mean, assume if we did agree with you that the Vienna Convention is not categorically off the table and we were to remand.

[00:01:21] Speaker 02:
I mean, how do we articulate the standards that the district court should apply?

[00:01:26] Speaker 02:
Since we don't have the documents before us, we don't have any sense of what type of issues are going to arise in that document-by-document consideration.

[00:01:34] Speaker 04:
Sure, Your Honor.

[00:01:35] Speaker 04:
I think it's unfortunate that, frankly, Cutter's request to develop this in a concrete way with a log is not where we are, but we are where we are, and we do think it is in the interest

[00:01:47] Speaker 04:
Um, but the sovereign of parties to this case of the district court, um, to at least get into some of these issues.

[00:01:53] Speaker 04:
So for example, we know that there is this issue of Farah, there's this issue that's been raised about the contract.

[00:01:59] Speaker 04:
We know that there will be issues about the standard for documents that are generated by the contractors that incorporate.

[00:02:05] Speaker 02:
I mean, isn't your view sufficient for us just simply to reverse and not provide guidance or

[00:02:13] Speaker 04:
You know, I think that in our view, the district court was wrong as a matter of law and the court should reverse and hold that the categorical rule it adopted was incorrect and the process needs to start.

[00:02:26] Speaker 04:
Obviously, the documents aren't here.

[00:02:29] Speaker 04:
The documents, there has been no log.

[00:02:31] Speaker 04:
So we think there's going to be a lot of work to do in the district court.

[00:02:35] Speaker 04:
Our request would be that it would be in the interest of all parties and the district court if the court did go a step beyond reversing that category.

[00:02:44] Speaker 02:
What does that look like, I guess, is my question.

[00:02:47] Speaker 04:
Sure, Your Honor.

[00:02:48] Speaker 04:
So I think we would start with a point of agreement with the United States about what documents of the mission means that are entitled to inviolability.

[00:02:56] Speaker 04:
We have offered certain factors.

[00:02:58] Speaker 04:
I think those are really, in our view, more granular ways of getting at some of the things that the United States government was talking about in terms of a special relationship looking to what is the purpose of

[00:03:11] Speaker 04:
of the engagement and of the work the contractors were doing related to the mission's performance of its functions.

[00:03:18] Speaker 04:
Was there an expectation of confidentiality?

[00:03:23] Speaker 04:
Was the mission exercising control and the treatments of those documents and information?

[00:03:27] Speaker 04:
So I think that is the first step.

[00:03:30] Speaker 04:
That's the standard that we would suggest.

[00:03:32] Speaker 04:
And then I think there are these sort of secondary issues that have risen.

[00:03:37] Speaker 04:
So to take one, this argument that Mr. Broidy makes,

[00:03:41] Speaker 04:
The United States does not endorse this argument, but this idea that because of this existence out there of a possible fair inspection right, that means that the expectation of confidentiality vanishes.

[00:03:54] Speaker 04:
If that were accepted on remand, I think that would maybe entirely or pretty close to entirely end this.

[00:04:03] Speaker 04:
We think that is something that the court should also address as well.

[00:04:05] Speaker 02:
That seems to me to be a very tricky question, because it seems, at least from the briefing and the records,

[00:04:11] Speaker 02:
that the application of FARAs, it's often worked out between DOJ and diplomatic missions.

[00:04:20] Speaker 02:
And so our stepping into that with some type of standard seems like a difficult place for this court to be without more knowledge of whether FARA will even come up with respect to the particular documents at issue.

[00:04:36] Speaker 02:
But you're saying that we should address that question.

[00:04:38] Speaker 02:
That seems to me to be a very tough question.

[00:04:41] Speaker 04:
I think there's two aspects of that question, one of which I agree is very difficult and we do not urge the court to decide, even though it was raised by Mr. Bordy's arguments, and the other which I think is a much less fraught path.

[00:04:54] Speaker 04:
Our view is that probably the better practice is not to get into this question of if you had a clash between sovereigns where the United States Department of Justice said,

[00:05:04] Speaker 04:
we want to inspect these records of a contractor of the mission.

[00:05:07] Speaker 04:
And then the sovereign representing that mission came in and said, no, some of these records are documents of the mission, and they're inviolable under the Vienna Conventions.

[00:05:17] Speaker 04:
We think that is a legitimately hard, difficult problem.

[00:05:20] Speaker 04:
I completely agree, Judge Royale, with your point that this tends to be worked out between sovereigns.

[00:05:25] Speaker 04:
And I think unless and until two sovereigns can't work that out,

[00:05:29] Speaker 04:
That is an issue better left for another day.

[00:05:34] Speaker 04:
Our view on how this issue should be resolved is to say, let's assume for the sake of argument that DOJ does have these inspection rights.

[00:05:45] Speaker 04:
That does not mean that the expectation of confidentiality that the mission has in the documents held by the contractor completely vanished.

[00:05:55] Speaker 04:
you know, possibility that maybe DRJ will exercise inspection rights and maybe, maybe, you know, that maybe the solver will or won't object.

[00:06:02] Speaker 04:
Maybe that will be worked out some, some other way.

[00:06:05] Speaker 04:
But, you know, we think that, you know, that doesn't change the fact that in this civil case, there is no, there is still a reasonable expectation of confidentiality that when the mission shares with its contractors for the purposes of assisting in its diplomatic missions, that that's not,

[00:06:22] Speaker 04:
The United States gives the example of stuff getting posted on the Internet.

[00:06:26] Speaker 04:
That's not anything close to what we're talking about with this hypothetical possibility of a DOJ inspection.

[00:06:32] Speaker 04:
So that's the path we'd suggest the court would go down.

[00:06:35] Speaker 04:
It does leave for another day.

[00:06:38] Speaker 01:
I'm interested in a whole other path going down.

[00:06:45] Speaker 01:
Perhaps it's the whole district court judging me, but I'm

[00:06:50] Speaker 01:
I want to ask you some questions about the motion to dismiss this appeal.

[00:06:55] Speaker 01:
Um, do you think as a general matter that it should be easier for a non party to get interlocutory review than a party in a civil case?

[00:07:08] Speaker 04:
Uh, your honor, you know, one of the two grounds for interlocutory review here is the parliament doctrine.

[00:07:13] Speaker 04:
And so under that doctrine under under this court's precedent applying for it, I think there are cases where

[00:07:19] Speaker 04:
where an appeal would be available to a non-party but not to a party.

[00:07:24] Speaker 04:
I don't think the court needs to get into that because regardless of who is appealing, I think under the collateral order doctrine this is appealable, but I think the concept of the Perlman doctrine is that there could be cases where if you were a party, you would essentially have to go the contempt route if you wanted to appeal, but a non-party may have a separate basis to appeal.

[00:07:44] Speaker 01:
When has the collateral order doctrine been

[00:07:47] Speaker 01:
used with respect to a non-party.

[00:07:52] Speaker 01:
Can you cite a case?

[00:07:54] Speaker 04:
Your Honor, I think this court-sealed case did rely on the collateral order doctrine.

[00:07:59] Speaker 04:
Now, I think Mohawk may have undermined the particular collateral order holding in Mohawk.

[00:08:07] Speaker 04:
But that was a case you're just zooming out.

[00:08:09] Speaker 04:
It's a conceptual matter where a non-party to the case filed a notice of appeal

[00:08:14] Speaker 04:
in this court entertained that appeal both under collateral order and Perlman grants.

[00:08:19] Speaker 01:
So I've looked at a bunch of our cases in the Supreme Court cases invoking either the collateral order doctrine or the Perlman doctrine.

[00:08:33] Speaker 01:
And I can't find a single one where the appellant wasn't at least a movement of some sort

[00:08:42] Speaker 01:
in the district court where they didn't, where they filed either a motion to quash, where they filed a formal objection, where they sought some sort of relief.

[00:08:55] Speaker 01:
And then they were appealing the denial of the specific relief that they sought.

[00:09:03] Speaker 01:
You didn't do that here.

[00:09:06] Speaker 04:
Your honor, I think we did.

[00:09:08] Speaker 04:
This case is complicated.

[00:09:10] Speaker 04:
because Qatar is a foreign sovereign and because it was essentially facing the threat that if it intervened, you know, the serious concern that Mr. Broidy would contend that that was a waiver.

[00:09:22] Speaker 01:
Who cares what he would contend?

[00:09:24] Speaker 01:
I mean, we have held since at least 1980 in the USV AT&T case that a non-party can intervene for the limited purpose in a civil case to assert a privilege.

[00:09:41] Speaker 01:
in the discovery dispute.

[00:09:44] Speaker 01:
And there's nothing in the text of 16 away, um, 16 five a one or 16 oh seven that suggests that that limited intervention is going to wave sovereign immunity to be able to assert some sort of claims against cutter.

[00:10:03] Speaker 01:
Um,

[00:10:04] Speaker 01:
And the fact of the matter is, is that you could have sought such limited intervention consistent with our practice practice and what the Supreme Court says is the preferred way of proceeding.

[00:10:18] Speaker 01:
Um, and then if that had been, if your limited intervention had been denied you, then you could seek interlocutory appeal of that denial along with consideration of

[00:10:34] Speaker 01:
the merits of the dispute.

[00:10:37] Speaker 01:
And we wouldn't have this situation where we don't know what you are.

[00:10:41] Speaker 01:
You fish or foul, we don't know.

[00:10:42] Speaker 01:
You're an amicus.

[00:10:46] Speaker 01:
You can't preserve arguments as an amicus below.

[00:10:49] Speaker 01:
We even have a rule where if you're a party and you don't join an emotion or an objection below, you can't assert it on appeal if you didn't join it.

[00:11:03] Speaker 01:
And that's if you're a party.

[00:11:06] Speaker 01:
So this is all a mess because you didn't pursue the option that was available to you to pursue.

[00:11:16] Speaker 01:
And I have a problem with that.

[00:11:19] Speaker 04:
A couple of responses to that.

[00:11:21] Speaker 04:
One, do you think when a sovereign is involved, it is something fraught?

[00:11:26] Speaker 04:
I agree with you that it would not in fact have been an implied waiver or triggered the counterclaim exception.

[00:11:34] Speaker 04:
I think a foreign sovereign has a legitimate reasonable interest in not even being subject to that risk, not even being subject to having to defend that claim.

[00:11:42] Speaker 04:
We know the district court suggested that it viewed that as a complex question.

[00:11:46] Speaker 04:
We could have wound up with expensive proceedings both in the district court and the court of appeals.

[00:11:51] Speaker 04:
So I think that's just a factual response to the unique circumstances here.

[00:11:55] Speaker 04:
On the broader question of whether you need to intervene or need to be a movement in the district court,

[00:12:03] Speaker 04:
You know, I think that's not what happened in this court-sealed case.

[00:12:05] Speaker 04:
It's not what happened in the Supreme Court's case in Devlin versus Scarlatti.

[00:12:10] Speaker 01:
The Supreme Court engaged in... But there, the party was going to be bound by the order.

[00:12:16] Speaker 01:
Here, Cutter isn't bound by the discovery order.

[00:12:20] Speaker 04:
And it's not bound in the sense that it's not directed at Qatar, but it is losing an immunity and inviolability to Qatar.

[00:12:29] Speaker 01:
If bound went that far, then someone who had an attorney-client privilege or a work product privilege that they were concerned about losing would be bound by a discovery order.

[00:12:43] Speaker 01:
And that's not the way that we... Bound has a term of art that has a particular meaning.

[00:12:49] Speaker 01:
Um, it means that the judgment binds you for attempt or other enforcement purposes or perhaps for race judicata or collateral estoppel issue reclusive purposes.

[00:13:00] Speaker 01:
And this doesn't do that.

[00:13:02] Speaker 01:
So you're not bound.

[00:13:03] Speaker 01:
So you don't fall within depth.

[00:13:06] Speaker 01:
Sure.

[00:13:06] Speaker 04:
Your honor.

[00:13:07] Speaker 04:
You know, I think that this court in the sealed case referred to being bound or otherwise having

[00:13:13] Speaker 04:
having interests affected and undermined, that's certainly what's happening.

[00:13:17] Speaker 04:
I think, you're certainly, I'm not saying that Devlin is factually on all fours, but I do think Devlin stands for, is the court says, first of all, this is not a question of Article 3 jurisdiction.

[00:13:31] Speaker 04:
That's satisfied by the personal stake.

[00:13:33] Speaker 04:
It's not even an assessment of credential standing, it's essentially,

[00:13:38] Speaker 04:
a provincial rule about who has a right to an appeal.

[00:13:42] Speaker 04:
In the court's analysis where it said there that intervention was not required for the absent class members, it is a very functional analysis.

[00:13:49] Speaker 04:
And that's why I think it is appropriate to look to these questions of whether a foreign sovereign should be put into this position.

[00:13:56] Speaker 04:
The only other thing I would say is- Well, it's practical.

[00:14:00] Speaker 01:
Also, you can say it's practical analysis on appeal.

[00:14:03] Speaker 01:
It's practical in the district court.

[00:14:05] Speaker 01:
whether or not you formally intervene or not, at least for this limited purpose so that you can preserve arguments so that it's clear like what arguments you're making and what arguments we can hear on appeal, what record you want to make, what you want to put in the record, what specific procedure you want so that we don't have a situation where we're trying to figure out on appeal.

[00:14:30] Speaker 01:
Is this something that the defendant

[00:14:34] Speaker 01:
asserted and did they make argument X but you as an amicus made argument X prime.

[00:14:42] Speaker 01:
The defendant doesn't appeal but you do.

[00:14:48] Speaker 01:
All of that could be solved if you had done what was available to you to do and which would provide no risk to you to do because if you seek limited intervention

[00:15:01] Speaker 01:
and you're not allowed to intervene on the limited terms and conditions that you set forth, then you can challenge that.

[00:15:14] Speaker 04:
Your honor, I respectfully push back on the no risk proposition there.

[00:15:19] Speaker 04:
I think that in the state of Qatar deciding how best to assert its interests here, we did look

[00:15:28] Speaker 04:
for guidance on this, found this to be an uncertain playing field.

[00:15:32] Speaker 04:
I think going forward, if this court were to adopt a rule that said,

[00:15:36] Speaker 04:
foreign sovereign that finds itself in this position should intervene.

[00:15:40] Speaker 04:
Doing so will not be construed as any kind of waiver of sovereign immunity.

[00:15:44] Speaker 04:
And if you don't do that, you're out of luck.

[00:15:46] Speaker 04:
I think that would be a perfectly reasonable and acceptable rule going forward.

[00:15:49] Speaker 04:
I think as applied to this case, the FSIA provides an exception for sovereign immunity to waivers that are implied.

[00:15:58] Speaker 04:
The district court, in this case, at least thought it was a complex question whether

[00:16:02] Speaker 04:
this would constitute a waiver of sovereign immunity.

[00:16:05] Speaker 04:
And we had no appeals authority, any other authority to be able to say, you know, to, to a sovereign, um, you are not at any risk here, um, by showing up, uh, and in, in intervening for purposes of this discovery, as you certainly, we might've said, we think we will, we would ultimately prevail there.

[00:16:23] Speaker 04:
Um, but I really don't think it's no risk.

[00:16:25] Speaker 01:
So I think, I think it's no risk in the sense that the way that I understand intervener practice, and you can tell me,

[00:16:32] Speaker 01:
if I'm wrong about this and direct me to a case.

[00:16:37] Speaker 01:
But when a party seeks limited intervention, like I've seen cases involving Indian tribes, et cetera, is that have that in the United States that have sovereign immunity, they can say, look, we want to intervene on this limited basis in under these conditions where

[00:16:56] Speaker 01:
We are preserving our and not waving our immunity as to A, B and C. We're only intervening on this limited basis.

[00:17:06] Speaker 01:
And if the district court agrees that that's appropriate after hearing from the parties and it grants that and if it disagrees and says no, I think that

[00:17:18] Speaker 01:
that if you intervene, um, you're going to wave this, this particular immunity that you don't want to wave.

[00:17:27] Speaker 01:
Um, um, that doesn't mean that like you are forced in under those conditions, you can challenge that in the court of appeals.

[00:17:38] Speaker 01:
And if the court of appeals finds that that's an abuse of discretion, then you can intervene on those terms.

[00:17:46] Speaker 01:
And if,

[00:17:47] Speaker 01:
it disagrees and you don't want to intervene on those terms, then maybe we have a question as to whether or not you should be able to pursue this as something other than a party.

[00:18:02] Speaker 04:
I think in terms of foreign sovereign immunity, I'm just not aware

[00:18:08] Speaker 04:
of cases addressing this question.

[00:18:10] Speaker 04:
I think the analysis wouldn't necessarily be the same the way it works in tribal summary only because we're talking about a specific statute that has a specific implied waiver exception for sovereign immunity.

[00:18:21] Speaker 04:
So I do think that there was risk there and this was a reasonable path under the circumstances and that this question of who is entitled to appeal as a non-party is functional and equitable

[00:18:35] Speaker 04:
You know, as Devlin says, I would suggest, you know, the cases that this court cites in its footnote in the Seald case, when you look at how other circuits address this, it's quite an amorphous set of considerations that go to what's equitable, what's fair in the circumstances for whether a non-party is able to fill.

[00:18:53] Speaker 04:
The last thing I would say on this is, you know, there is the possibility of construing this as a mandamus petition.

[00:19:01] Speaker 04:
The United States agrees with us that there was a clear

[00:19:03] Speaker 04:
error here and an entitlement to revend.

[00:19:06] Speaker 04:
And that I think is another option that may avoid some of these problems.

[00:19:10] Speaker 01:
The concern I have, reason why I think we've got to go to first principles here is Mohawk.

[00:19:18] Speaker 01:
I mean, Mohawk seems to say that you've got to pick one door.

[00:19:24] Speaker 01:
You've got to either pick the interlocutory appeal door under the collateral order doctrine, or you pick mandamus.

[00:19:32] Speaker 01:
was one of the rationales of most holding is that look, um, as a categorical matter, attorney client, um, privilege claims we're going to say, um, are not subject to, um, this collateral order interlocutory appeal doctrine because, um, there's a couple of things that you, you could do.

[00:19:59] Speaker 01:
You could, you could,

[00:20:00] Speaker 01:
perhaps suffer contempt, get direct appeal that way.

[00:20:05] Speaker 01:
You could ask for the order to be certified for interlocutory appeal.

[00:20:13] Speaker 01:
And if it's a novel question, then that's generally going to happen.

[00:20:17] Speaker 01:
And you get interlocutory appeal that way.

[00:20:19] Speaker 01:
Or if neither of those are really going to be available to you, then mandamus will be available to you.

[00:20:29] Speaker 01:
And so you don't go through, um, this door.

[00:20:35] Speaker 01:
So I think we have to to figure out as a doctrinal matter, um, which door, um, um, must you have to go through and, um, and in

[00:20:59] Speaker 01:
If it's the, the, um, petition for mandamus store, the reason that that door would be available to you is because there's no other adequate relief that's, that's available.

[00:21:15] Speaker 01:
So we have to, you know, make a decision as to whether in these cases in general, that's the way that they're going to be handled.

[00:21:26] Speaker 01:
Um, not just,

[00:21:28] Speaker 01:
we're handling it that way in this case, because you didn't seek intervener status.

[00:21:35] Speaker 01:
Um, I think if you could have, and we're supposed to have sought intervener status to deal with this, then the mandamus option shouldn't be available to you because you would, um, um,

[00:21:56] Speaker 01:
you should exhaust these other possibilities as seeking collateral review under party.

[00:22:03] Speaker 04:
Sure, sure.

[00:22:04] Speaker 04:
I understand, Your Honor.

[00:22:05] Speaker 04:
And I think it actually this court's decision in the prior Broidy versus Muzzin appeal is actually a good example of how the court has addressed something, you know, for purposes of this case, but also going beyond.

[00:22:18] Speaker 04:
And what it said there was that case was entitled to a collateral order review.

[00:22:21] Speaker 04:
But because of what the court clarified in that decision,

[00:22:25] Speaker 04:
other cases might not actually rise to the level.

[00:22:29] Speaker 04:
Here, I think the court could quite reasonably say, going forward, if a foreign sovereign is in this position, it should intervene, and doing so will not

[00:22:40] Speaker 04:
constitute any possibility of a waiver of sovereign immunity.

[00:22:43] Speaker 04:
And if a sovereign is on notice of that going forward and tries to do it another way, then I think that would be a perfectly sensible rule going forward.

[00:22:52] Speaker 04:
I think in terms of the solicitude to a foreign sovereign, as the Supreme Court has said, seeking to have its interests heard in US courts, there just wasn't guidance for what to do in this circumstance.

[00:23:04] Speaker 04:
We think that this was a reasonable way for the state of Qatar faced with these risks, faced with these concerns to proceed.

[00:23:13] Speaker 03:
Can I ask one follow-up question to Paul earlier?

[00:23:17] Speaker 03:
Can you just state concisely what you think we should say about the Farah issue?

[00:23:25] Speaker 04:
I think that the court does not have to... If we get to it?

[00:23:28] Speaker 04:
Sure.

[00:23:28] Speaker 04:
If you get to the Farah issue, I think the court can say it is a hard question.

[00:23:33] Speaker 04:
you know, what would happen if DOJ was seeking to inspect records that a foreign sovereign claimed were inviolable documents of the mission.

[00:23:41] Speaker 04:
I think in this case, the court can say that in this civil discovery dispute, you know, the hypothetical possibility that DOJ may in the future seek to inspect these records does not so undermine the expectation of confidentiality in those mission records, in those mission documents.

[00:23:58] Speaker 04:
that they cease to become documents of the mission under the standards that the United States and Qatar.

[00:24:04] Speaker 03:
Why would we even say that?

[00:24:06] Speaker 03:
Why not just leave it all open to be worked out on remand, the way that the FARA intersects with inviolability principles, and then we can always consider it into subsequent appeal if necessary?

[00:24:19] Speaker 04:
Your honor, I certainly don't disagree that that's a path that's open to you.

[00:24:24] Speaker 04:
Mr. Broidy has raised objections to the possibility of this.

[00:24:29] Speaker 03:
In other words, you don't view the state of things in the district court to be such that if we get to that stage and if we were to send it back, that the issue of the way that the FARA intersects with inviolability is already a foregone conclusion to the district court.

[00:24:45] Speaker 04:
Your honor, there is a

[00:24:47] Speaker 04:
believe a paragraph or so of the district court's opinion that does address that.

[00:24:51] Speaker 04:
It is sort of confirmatory, as I read the opinion, is sort of confirmatory of the district court's broader textual view.

[00:25:00] Speaker 03:
Other conclusions, but by hypothesis, we would have already, if we even get to that stage, then the premise would be gone.

[00:25:05] Speaker 04:
Yeah, I think it would be open.

[00:25:07] Speaker 04:
I think we're here as a non-party wanting to be heard, and if that means

[00:25:14] Speaker 04:
You're having this fleshed out in the district court with the possibility of coming back if it results in another categorical ruling that we think is wrong.

[00:25:22] Speaker 04:
I think that's okay with us.

[00:25:23] Speaker 04:
I think the parties may have views about that.

[00:25:27] Speaker 03:
And we're not trying to... But the way you read the state of things in the district court is that it would all be open.

[00:25:36] Speaker 04:
And I think, by hypothesis, if the court rejected the district court's overall framework, adopted another one, perhaps one similar to the United States and cutters, I do think it would be open.

[00:25:50] Speaker 04:
My view, personally, is that it would be useful.

[00:25:52] Speaker 04:
But certainly, I think we could make that argument.

[00:25:55] Speaker 01:
I have a question, another question about Mohawk.

[00:25:58] Speaker 01:
Mohawk, the Supreme Court said, we're not going to look at like

[00:26:05] Speaker 01:
creating whether this sort of discovery dispute involving attorney-client privilege falls within the third prong by looking at the facts and circumstances of any particular case.

[00:26:23] Speaker 01:
We're just going to make a categorical ruling that attorney-client privilege challenges

[00:26:32] Speaker 01:
don't meet this third prong of the Cohen standard, right?

[00:26:38] Speaker 01:
And they said, we're going to do that by looking at how much deferring review or the inapplicability of review would thaw and harm people who would seek to

[00:27:02] Speaker 01:
benefit from the, from the privilege and in the court acknowledged that, you know, part of the, the, the argument here is that, that this type of privileged information should never be disclosed, but the court reaches a conclusion that, you know, not withstanding all of that, we don't think that, that this is going to essentially, um,

[00:27:32] Speaker 01:
have some sort of a serious negative deleterious effect on people's ability to consult with their attorneys.

[00:27:44] Speaker 01:
Don't we have to, for you to prevail and for us to agree to hear this appeal, don't we have to reach a conclusion contrary to Mohawk's analysis of attorney-client privilege

[00:28:01] Speaker 01:
for this particular privilege that you are asserting?

[00:28:07] Speaker 04:
All right.

[00:28:08] Speaker 04:
I agree that the analysis is categorical.

[00:28:10] Speaker 04:
So on the question of the collateral order doctrine, the question is not, is Cutter's specific claim here and the facts of this case effectively unreviewable.

[00:28:20] Speaker 04:
The question, I think, I would phrase it as an objection to disclosure and discovery on the basis that something

[00:28:27] Speaker 04:
would violate the Vienna Convention on Diplomatic Relations.

[00:28:30] Speaker 04:
That's the category.

[00:28:32] Speaker 04:
So I think you would go through the Mohawk analysis.

[00:28:34] Speaker 04:
And the court gave a number of reasons why, for attorney-client privilege, an appeal at the end of after a final judgment was enough.

[00:28:43] Speaker 04:
And what the court said is as important as the attorney-client privilege rule, the rules of the road are known.

[00:28:48] Speaker 04:
This is well settled.

[00:28:49] Speaker 04:
Not much is going to be gained by all these appeals.

[00:28:52] Speaker 04:
There's going to be a lot that's lost by having all those appeals in the courts of appeals.

[00:28:56] Speaker 04:
Burden with that, I think, as the United States brief confirms here, what's at issue here is a question of the United States' compliance with its obligations under an international treaty.

[00:29:08] Speaker 04:
As important as the attorney-client privilege is, that's something of a different order.

[00:29:13] Speaker 04:
It's not something, as the court emphasized in Mohawk, where there is sort of a well-tried analysis that the Court of Appeals have developed, that there's not much of a chance of reversal on appeal.

[00:29:24] Speaker 04:
These are complex and novel issues.

[00:29:27] Speaker 04:
So I think we have no problem with following the analysis of Mohawk.

[00:29:33] Speaker 04:
We just think it comes out in a different way here, just as this court has never reached the Supreme Court.

[00:29:38] Speaker 04:
This court routinely holds that it is a denial of sovereign immunity because of the particular harms involved of forcing a sovereign who may be immune from facing the burdens of suit that this court routinely says.

[00:29:52] Speaker 04:
that all ties into the federal order doctrine.

[00:29:54] Speaker 04:
I think when you have the category here of a claim of inviolability under the Vienna Convention on Diplomatic Relations and the possibility that the United States will instantaneously be put in violation of its international law obligations, the moment of disclosure.

[00:30:10] Speaker 04:
And that is a particularly important interest that's at peril and that justifies review under the MOA standard.

[00:30:17] Speaker 03:
Thank you, counsel.

[00:30:18] Speaker 03:
Thank you, Your Honor.

[00:30:19] Speaker 03:
We'll hear from the government now.

[00:30:21] Speaker 03:
Mr. Tatara.

[00:30:30] Speaker 05:
Thank you, Your Honor.

[00:30:30] Speaker 05:
This is Martin Tataro for the United States.

[00:30:32] Speaker 05:
If I could just briefly address the jurisdictional piece before moving to the merits.

[00:30:36] Speaker 05:
I think unlike evidentiary privileges that can be protected through an appeal with a remedy, if the defendants turn over inviolable documents, others' treaty rights will have been violated at that very moment.

[00:30:50] Speaker 05:
And so that's a value of high order, not only because we're talking about

[00:30:55] Speaker 05:
other treaty rights, but we're also talking about the United States obligation to safeguard those very rights.

[00:31:02] Speaker 05:
So I think in that circumstance, coupled with all the other distinctions with Mohawk Industries we discussed in the brief, just a very different case.

[00:31:10] Speaker 05:
And then the final brief point I'll make is that this court, the first time this case was up on appeal, took a practical, pragmatic approach to appellate jurisdiction, and we think it should do so, again, here.

[00:31:22] Speaker 05:
in the same way that it does when we're talking about an issue of foreign sovereign immunity, where we're talking about a violation where the harm occurs at the time of the violation that cannot be remedied on appeal.

[00:31:36] Speaker 03:
Can I ask you, do reciprocity considerations come into play even with respect to jurisdiction?

[00:31:42] Speaker 03:
So for example, I could understand that the United States would be concerned

[00:31:46] Speaker 03:
that if it were in a similar situation in a foreign jurisdiction, it would also want the ability to get its inviolability assertion heard as soon as possible before the documents would be disclosed.

[00:32:02] Speaker 03:
100% correct.

[00:32:04] Speaker 05:
Yes, we agree.

[00:32:07] Speaker 01:
And should that should that be done by mandamus?

[00:32:14] Speaker 01:
or should that under the mandamus stand, which is different because you have to show kind of a clear right to relieve their indisputable versus a non-party being able to avail itself.

[00:32:34] Speaker 01:
It's lesser standard of lateral order review.

[00:32:44] Speaker 05:
In this specific case, the government is agnostic because whether it be through the collateral order doctrine and the lack of an effective remedy on appeal or through mandamus, the district court's categorical approach, which we think was clearly an error, that could be resolved through mandamus as well.

[00:33:04] Speaker 05:
So I understand, I take your point that in many cases, party, you're going to have to generally choose collateral order or mandamus.

[00:33:13] Speaker 05:
Here, I think, regardless of which path the court chooses, all of the requirements are satisfied.

[00:33:19] Speaker 05:
So it doesn't really matter in the United States.

[00:33:23] Speaker 05:
How appellate jurisdiction is established is that the fact that it is established.

[00:33:27] Speaker 05:
So as Chief Judge Trinidad and Boston pointed out, the foreign sovereign's treaty rights can be safe.

[00:33:34] Speaker 01:
Just so that I'm clear about the United States' position, what do you think is the clear error of the Vienna Conventions

[00:33:42] Speaker 01:
analysis or international comedy analysis or both.

[00:33:47] Speaker 05:
A clear error, your honor.

[00:33:48] Speaker 05:
This can also lead me into the merits is the adoption of a categorical rule that whenever documents are freely given to third parties, those documents necessarily fall outside the Vienna Convention.

[00:34:05] Speaker 05:
And I'm happy to talk about why that's irreconcilable with the text

[00:34:09] Speaker 03:
Because you didn't even talk about international comedy in your brief, right?

[00:34:15] Speaker 03:
Correct.

[00:34:16] Speaker 05:
Yes, Your Honor, sorry.

[00:34:17] Speaker 05:
This court's order asks us to focus on jurisdiction and the treaties, and so the United States did so.

[00:34:23] Speaker 05:
And so the United States hasn't offered an opinion on international comedy in this context.

[00:34:35] Speaker 05:
I will address the text of the treaty, the purpose practice.

[00:34:40] Speaker 05:
But at the outset, I wanted to be upfront that one critical concern to the United States is that the district court's categorical error poses a serious threat to how the United States operates its embassies overseas from terms of reciprocity.

[00:34:57] Speaker 05:
So the United States as a matter, I don't know,

[00:35:00] Speaker 05:
routinely is the proper word, but it not infrequently uses outside contractors to carry out essential functions as defined under Article 3 of the Vienna Convention.

[00:35:12] Speaker 05:
This is most often seen in terms of like embassy construction or security personnel.

[00:35:19] Speaker 05:
And as the government reads the district court's order, none of the very important documents that are provided to those individuals, including

[00:35:27] Speaker 05:
For example, like blueprints of an embassy would be protected by Article 24.

[00:35:32] Speaker 05:
And that, as a matter of simplicity, is a very serious error.

[00:35:37] Speaker 05:
And it cannot be reconciled with the text of Article 24, which is talking about the protection of documents wherever they may be.

[00:35:45] Speaker 02:
Can you also speak to the question about the intersection between the Vienna Convention and FARA?

[00:35:52] Speaker 02:
Because obviously DOJ is the entity that

[00:35:57] Speaker 02:
that enforces far.

[00:36:00] Speaker 02:
Do we need to even do we need to say anything about that in this case?

[00:36:04] Speaker 02:
And, you know, do we need to?

[00:36:07] Speaker 02:
Should we?

[00:36:07] Speaker 02:
You know, what would that look like?

[00:36:11] Speaker 05:
I do not push back against the hypothetical or the question lightly, but I think the court should be very careful about what it says about the potential intersection between the Farah and the Vienna Convention, because doing so could raise significant

[00:36:26] Speaker 05:
domestic and international concerns.

[00:36:32] Speaker 05:
There is no need for this court to address whether there is a potential conflict between the Farah and the treaty.

[00:36:43] Speaker 05:
And one potential way to avoid that issue would be through the framework we've adopted, which is to say, look, the text of the treaty does not resolve when documents given to third parties

[00:36:57] Speaker 05:
are of the mission, even though those documents would be subject to a fair inspection.

[00:37:03] Speaker 05:
The critical inquiry, as we know from international scholars like DENZA, is whether the entity had a reasonable expectation of confidentiality when it handed those documents over to a third party.

[00:37:16] Speaker 05:
And on that question, our brief provides a framework where we set forth three factors that all point toward that overarching question of confidentiality.

[00:37:28] Speaker 05:
And then to get directly to your point, as applied in this case, we have the text of the contracts between the mission and the particular consultants that, in the United States view, allows this court to sidestep

[00:37:44] Speaker 05:
direct issue of whether the FARA ever poses a conflict with articles.

[00:37:50] Speaker 03:
Suppose we disagree with that.

[00:37:51] Speaker 03:
Suppose we don't think that the boilerplate about as required by law, that's what you're talking about, right?

[00:37:55] Speaker 03:
I guess.

[00:37:56] Speaker 03:
Suppose that we don't think that that resolves this issue.

[00:38:01] Speaker 03:
Then, I mean, I know your argument is that as required by law, FARA is a law and therefore the contract already presupposes that documents can be turned over under FARA.

[00:38:10] Speaker 03:
But suppose

[00:38:11] Speaker 03:
We think that there's something to the other side's notion, which is, well, that's just circular because the whole question is whether it's required by law.

[00:38:19] Speaker 03:
Then where are we with respect to Farah?

[00:38:21] Speaker 03:
And then where does the United States think we should go in an opinion if all the other predicate steps get us to that point?

[00:38:28] Speaker 05:
So on the premise of the question, just to be clear, under Cutter's view, as required by law, it has no meaning whatsoever in the contract, boilerplate or not.

[00:38:38] Speaker 05:
Because under Cutter's view, this is in footnote 11 of the brief.

[00:38:41] Speaker 05:
That only applies to documents that aren't of the mission anyway.

[00:38:45] Speaker 05:
And so that phrase need not be in there.

[00:38:49] Speaker 05:
at all and so that those contracts could have very easily said, for example, consultants, while you may, under the laws of the United States, give those documents to the Department of Justice if inspected under no circumstances, and you give these documents to others in private litigation.

[00:39:06] Speaker 05:
But Cutter chose not to do that.

[00:39:08] Speaker 05:
And so our point is nearly that when you hand over documents to a third party against the backdrop of Farah, that diminishes but does not eliminate the expectation of confidentiality.

[00:39:22] Speaker 03:
And to get to the point, well, I take that point, but suppose we just don't think it's that that's definitive with respect to Farah.

[00:39:31] Speaker 05:
Right.

[00:39:31] Speaker 05:
And so I think the problem there is that a document either is of the mission or it's not of the mission.

[00:39:39] Speaker 05:
And so a document can't be of the mission if it's requested, not of the mission if it's requested by the United States, but at the same time being

[00:39:49] Speaker 05:
of the mission when requested by a private party in litigation.

[00:39:53] Speaker 05:
So our point was merely that once you undermine that confidentiality expectation, it takes it out of the realm of being a document of the mission.

[00:40:01] Speaker 05:
But I take the point that I don't want to fight gravity here.

[00:40:05] Speaker 05:
And if the court disagrees with that, one option, which I think Carter laid out on page 22 of his reply, is to say, look, these documents might still be of the mission.

[00:40:17] Speaker 05:
But the contracts consented or waived any request by the United States, by the Department of Justice, when we were in the land of Farah.

[00:40:29] Speaker 05:
So in that circumstance, the documents could potentially still be of the mission.

[00:40:33] Speaker 05:
But the court would need not have to address any potential conflict between Farah and the treaty.

[00:40:39] Speaker 05:
Because it would say, regardless of whether those documents are of the mission, even if those documents are of the mission,

[00:40:47] Speaker 05:
that the Qatar mission has consented to them being turned over by the United States.

[00:40:54] Speaker 02:
So if we were to remand and the district court concluded that a particular document was of the mission and therefore inviolable, is it the government's view that they could still seek that document under FARA?

[00:41:07] Speaker 05:
So then if there had been a ruling by district court that it was inviolable in private litigation, I think so, your honor, because it wouldn't address this issue of consent or waiver.

[00:41:19] Speaker 05:
And so it would be the district court would say, look, this seems like a very important document that satisfies the framework of confidentiality.

[00:41:28] Speaker 02:
And then it's just a separate question.

[00:41:29] Speaker 05:
And then it's a separate question.

[00:41:31] Speaker 05:
And I think it would be important if the court went that route to make clear that it is a separate question when we're not talking about private party litigation, but when we're talking about the United States invoking its inspection rights under the statute.

[00:41:44] Speaker 05:
The reason why this hasn't popped up, I suspect, is because, as Your Honor noted, this tends to be done on a sovereign-to-sovereign basis as opposed to this rather unique situation.

[00:41:57] Speaker 03:
But then the result would be, though, and there is something intuitively at least possible about this result, is that inviolability prevents the document from being turned over in this kind of litigation.

[00:42:10] Speaker 03:
But it doesn't prevent the government from obtaining the document pursuant to fair.

[00:42:14] Speaker 05:
And I think that would be because of some sort of consent that, again, that utter... So you think you'd have to point to something in a contract itself in order to reach that result.

[00:42:25] Speaker 03:
But for that, there's no way to reach that result.

[00:42:27] Speaker 05:
I think the contract is the easiest way to talk the potential very thorny issue of whether if a document on a remand is of the mission, whether the United States can invoke its statutory inspection rights without being in tension with

[00:42:45] Speaker 05:
article 24.

[00:42:46] Speaker 05:
But again, I cannot stress enough that I don't think the court need to reach that direct issue.

[00:42:51] Speaker 05:
I think rather the more appropriate course is to say district court, the categorical approach you adopted is incorrect.

[00:42:58] Speaker 05:
Here are the proper factors.

[00:43:00] Speaker 05:
And then focusing on the language of the contract, either agreeing with the United States position that

[00:43:08] Speaker 05:
This has significantly undercutter diminished the expectation of confidentiality.

[00:43:13] Speaker 05:
Therefore, probably taking those documents outside of mission status under 24, or the route cutter is proposed, which is to say, look, the document's at a minimum consent to inspection by the government.

[00:43:28] Speaker 05:
But that's a separate question entirely from whether in private party litigation, they're subject to discovery.

[00:43:33] Speaker 03:
Or just leave that off.

[00:43:35] Speaker 03:
I'm sorry?

[00:43:35] Speaker 03:
Or just leave that off to be worked out on remand.

[00:43:38] Speaker 03:
I don't even know that.

[00:43:39] Speaker 03:
Why would we even have to do either of those things?

[00:43:42] Speaker 03:
Why would we not just send it back, say?

[00:43:47] Speaker 05:
It is certainly within the court's discretion not to do that.

[00:43:50] Speaker 05:
I think this is a situation where more guidance might be better than less, just to provide the proper signposts so we're not here.

[00:44:01] Speaker 03:
If we thought we had enough information with which to give signposts.

[00:44:05] Speaker 03:
Yes, Your Honor.

[00:44:07] Speaker 02:
Just ask you, as a factual matter, does DOJ litigate under FARA against foreign sovereigns?

[00:44:14] Speaker 02:
I'm assuming not very often, but I was just wondering, as a factual matter, if those cases are related.

[00:44:21] Speaker 05:
So, Cedra, unfortunately, and by no means a FARA or criminal expert.

[00:44:26] Speaker 05:
I know these issues pop up.

[00:44:28] Speaker 05:
I don't know how many inspections are a year.

[00:44:31] Speaker 05:
I think it's something like 20 inspections.

[00:44:32] Speaker 05:
And I just don't know how often it gets litigated where

[00:44:37] Speaker 05:
Well, I don't think it gets litigated, but I don't know how often a foreign sovereign comes in and says, wait a minute here, we're dealing with very sensitive ground.

[00:44:45] Speaker 02:
And I was just curious.

[00:44:46] Speaker 05:
I think the lack of basis speaks volumes about to the extent it's ever addressed, how it's addressed at a more typical level.

[00:44:54] Speaker 03:
Can I ask you, the government didn't reference Article 27 in its brief, I think.

[00:45:00] Speaker 03:
We did not.

[00:45:01] Speaker 03:
And is there a reason for that?

[00:45:03] Speaker 05:
We're not sure that Article 27.2 gives anything more that Article 24 otherwise wouldn't provide.

[00:45:10] Speaker 05:
And it seems like the clear thrust of Article 27 is talking about correspondence between the sending state and the embassy itself.

[00:45:20] Speaker 05:
I don't want to sort of

[00:45:22] Speaker 05:
put forth a categorical position that the United States view that that's where the only certainly stands in which Article 27 applies.

[00:45:29] Speaker 05:
But here, as I think the scholar I noted before, Denzel, said it best, it seems that Article 27's protections are duplicative.

[00:45:38] Speaker 05:
So I just don't think it.

[00:45:39] Speaker 05:
It doesn't add anything.

[00:45:40] Speaker 05:
I don't think it does any work that Article 24 doesn't already provide.

[00:45:44] Speaker 05:
Just like I'm not sure that the Perlman Doctrine on jurisdiction would do any more work with the lateral order doctrine or the mandamus.

[00:45:52] Speaker 03:
And you don't think if Article 27 is narrower, that then article, that narrowness gets read back into Article 24?

[00:45:57] Speaker 05:
No, I don't think Article 27 takes away anything provided.

[00:46:04] Speaker 01:
One last fair question.

[00:46:10] Speaker 01:
What triggers the inspection power or rights of the government?

[00:46:18] Speaker 01:
Is there, is it just because they want to, or do they have to have some sort of cause or justification?

[00:46:27] Speaker 01:
Do they have to seek leave of court?

[00:46:32] Speaker 01:
What enables the government to inspect the records that are required to be kept under fair?

[00:46:39] Speaker 05:
But I'm not exactly sure what triggers the exception right, except I know you are subject to the regulations that get triggered when you have to register as an agent under the foreign agent.

[00:46:53] Speaker 05:
But I'm not sure if there, and I apologize if there's not a second further step.

[00:46:58] Speaker 05:
I would be surprised if there were.

[00:46:59] Speaker 05:
The critical question, I think, is that question in the first instance of whether you need

[00:47:06] Speaker 01:
So we don't know whether you have to get a warrant or whether the FBI can just show up and say, you're registered under FARA.

[00:47:16] Speaker 01:
There's all these records you're required to keep.

[00:47:19] Speaker 01:
We're here to see them and to move.

[00:47:21] Speaker 05:
It's my understanding, as a matter of practice, this isn't something where federal agents are banging down your door.

[00:47:27] Speaker 05:
It's a collaborative process where there's an inspection that occurs, I think, either on premises or even

[00:47:34] Speaker 05:
you know, through a server or whatever, where the documents are put, and then the government can look at the documents.

[00:47:42] Speaker 01:
So at least you don't have any reason to believe that a warrant or subpoena or some sort of court authorization is required for that inspection to occur?

[00:47:58] Speaker 05:
It could be very wrong, but I don't think so.

[00:48:02] Speaker 03:
I have one other question.

[00:48:04] Speaker 03:
And this goes back to international comedy.

[00:48:06] Speaker 03:
And I didn't address it in your briefing.

[00:48:08] Speaker 03:
You didn't have to, but you could have.

[00:48:10] Speaker 03:
Because I don't think the order cabin, the grounds, is pointed to particular grounds as a possibility.

[00:48:15] Speaker 03:
And I'm just wondering, do you have a view on that on behalf of the United States?

[00:48:19] Speaker 03:
Does the United States think that comedy adds anything when you've got something specific that deals with the terrain, like Article 24 does?

[00:48:26] Speaker 05:
So the United States did not opine on that question.

[00:48:31] Speaker 05:
But the United States does not want the court to read into anything.

[00:48:34] Speaker 05:
It's not that the government thinks that Tommy plays no role here or can play a role on remand.

[00:48:41] Speaker 05:
We just have taken no position.

[00:48:43] Speaker 05:
And instead, we focus on the text of the court's order in a rather compressed

[00:48:52] Speaker 03:
And I know you didn't do it in your brief, but are you prepared to say anything about the government's view about comedy in the abstract here, or the role that comedy may or may not have vis-a-vis the particular provisions in the conventions?

[00:49:07] Speaker 05:
No, Your Honor.

[00:49:07] Speaker 05:
We think this case can be resolved.

[00:49:09] Speaker 05:
This appeal can be resolved purely on the court's interpretation.

[00:49:14] Speaker 03:
But I don't know about that, because if under the conventions, what the government wants is for us to remand

[00:49:22] Speaker 03:
and to have a document-by-document run through to see if the factors are satisfied with respect to each document, which is where I think you are.

[00:49:31] Speaker 03:
Then there's at least conceptually a broader question, which is would comedy come in and come across the board and say you don't even have to do document-by-document?

[00:49:40] Speaker 03:
It's more wholesale than that.

[00:49:42] Speaker 05:
I'm not sure I understand how it would be more wholesale, but category by category.

[00:49:46] Speaker 05:
I think the factors we set forth in the brief could go a long way toward the type of document by document or category of document by category of document review, Your Honor is suggesting.

[00:50:00] Speaker 05:
I'm not saying that comedy should be foreclosed on remand.

[00:50:03] Speaker 05:
The government has merely just hasn't taken a position on the issue altogether, one way or the other.

[00:50:09] Speaker 03:
And comedy would not get cutter any more than that, I assume.

[00:50:12] Speaker 03:
because otherwise then we'd do more than remand and just set out the factors because there'd be the potential that there'd be a greater grounds for what we'll call inviolability pursuant to an overhanging comedy.

[00:50:28] Speaker 05:
I could imagine Carter arguing something along the lines of apply the factors as set forth in the United States brief.

[00:50:34] Speaker 05:
But if there are close calls and comedy could play a role in the district court's decision of

[00:50:40] Speaker 05:
whether a document is in or out.

[00:50:42] Speaker 05:
And on that issue, again, we're not.

[00:50:45] Speaker 05:
But I could imagine it playing a role.

[00:50:49] Speaker 05:
All right.

[00:50:50] Speaker 05:
Thank you for giving us the opportunity to participate in oral.

[00:50:53] Speaker 03:
Thank you, counsel.

[00:50:57] Speaker 03:
Mr. Saunders.

[00:51:01] Speaker 06:
Your Honor, I'm very pleased to court.

[00:51:03] Speaker 06:
And I will be addressing the jurisdictional issues, turning it over to my partner, Mr. Benson, to address issues regarding conventions and accommodate

[00:51:11] Speaker 06:
So the two separate questions that really need to be addressed at the outset, two separate hurdles that Cutter needs to overcome are, one, is the district court's discovery order granting the motion to compel appeal at this stage?

[00:51:27] Speaker 06:
And two, does the state of Cutter, a non-party who has not intervened, sought to intervene, pass standing to appeal it?

[00:51:35] Speaker 06:
Unless both of those preliminary questions are answered affirmatively, you don't need to reach any of the other issues that we've been discussing here today.

[00:51:43] Speaker 06:
Mr. Zients suggested essentially that this court should issue

[00:51:47] Speaker 06:
an advisory opinion regarding what would have happened if Cutter had sought to intervene for a limited purpose and what effect that would have had on its sovereign immunity.

[00:51:56] Speaker 06:
We're not looking at advisory opinions here, I submit.

[00:51:59] Speaker 06:
Let's look at where we are based on what has happened in the district court and where Cutter stands now.

[00:52:06] Speaker 06:
With respect to standing, we know that allowing non-parties to appeal even a final judgment

[00:52:14] Speaker 06:
is a rare exception to the general rule that only parties to a lawsuit or those that properly become parties can appeal an adverse judgment.

[00:52:27] Speaker 06:
Cutter talks about the in resealed case decision from this court, specifically a footnote that talks about standing.

[00:52:35] Speaker 06:
It's actually dictum because the footnote itself makes clear that standing wasn't even challenged in that case.

[00:52:41] Speaker 06:
And, of course, Henry's sealed case, which relied on this court's decision in US versus Philip Morris, was itself overruled by Mohawk.

[00:52:51] Speaker 06:
So we're talking about their main authority for standing being dictum in a footnote, in a sense, overruled case.

[00:52:59] Speaker 06:
That footnote states that if the decree affects a third party's interest, he is often allowed to appeal.

[00:53:07] Speaker 06:
That was actually quoted language from the Fifth Circuit's decision in Castillo versus Cameron County, which was a case where a state that was itself a former party to the litigation was bound by an injunction that related to jail overcrowding and at risk being found in contempt if it violated that injunction.

[00:53:28] Speaker 06:
The only other cases that Qatar relies on for standing are similarly cases where, such as Devlin, where the non-party was an unnamed member of a certified class that was bound by a settlement, or the Karaha-Botus case from the Second Circuit, where the non-party was required to surrender property pursuant to an order of attachment.

[00:53:51] Speaker 03:
Can I ask you, do you agree that if there would have been an intervention, that there would not have been a waiver of sovereign immunity?

[00:53:59] Speaker 06:
I agree with Judge Wilkins that there's clear precedent for intervening for a limited purpose.

[00:54:05] Speaker 03:
Do you agree that there's a way that Qatar could have intervened, you can call for a limited purpose, such that they would not have waived their sovereign immunity, but still would have been able to assert the arguments that they're making?

[00:54:19] Speaker 06:
I think it's an open question that would have to be resolved based on the specific arguments that they made in connection with the intervention.

[00:54:25] Speaker 03:
The more it's an open question, I mean, if you're not able to agree to that, then it seems

[00:54:30] Speaker 03:
difficult to reach the conclusion that they should have intervened and not worried about waving foreign sovereign immunity.

[00:54:36] Speaker 06:
Well, again, that would have been something that would have been addressed by the district court.

[00:54:40] Speaker 06:
As Judge Wilkins pointed out, it could have been taken up to this court if the district court had denied it, and that could have been resolved.

[00:54:46] Speaker 06:
But they didn't even attempt to do any of that.

[00:54:49] Speaker 06:
So that never ended up coming before the district court or this court.

[00:54:53] Speaker 06:
But as Judge Wilkins pointed out, the language from Devlin that

[00:54:58] Speaker 06:
Cutter relies on talks about nonparties being able to appeal if they are bound by the order that they are seeking to appeal.

[00:55:05] Speaker 06:
So what does it mean to be bound by the order?

[00:55:07] Speaker 06:
Again, we have cases where nonparties were bound by an injunction, nonparties were bound by an order of attachment.

[00:55:14] Speaker 06:
Cutter isn't bound by anything because the district court's order doesn't require it to do anything.

[00:55:20] Speaker 06:
Much more on point is this court's decision in motion.

[00:55:24] Speaker 06:
Which held that a party that had filed papers in the district court, but had not sought to intervene and stood in the position of an amicus.

[00:55:32] Speaker 06:
was not entitled to appeal, and that this court had no jurisdiction.

[00:55:36] Speaker 06:
That's exactly what we have here.

[00:55:37] Speaker 06:
Just like the non-party in Moton, Cutter never sought to intervene.

[00:55:41] Speaker 06:
The district court ruled in its minute order of December 8, 2021, that Cutter would be allowed to submit statements of interest in the posture of an amicus.

[00:55:52] Speaker 06:
And Cutter did not appeal from that order.

[00:55:54] Speaker 06:
The order that said it only had

[00:55:56] Speaker 06:
amicus standing.

[00:55:58] Speaker 06:
It did not seek to intervene in response to that order.

[00:56:00] Speaker 06:
It accepted its limited role as an amicus curiae, and in fact, in its statement of interest that was submitted in connection with the motion to compel, Cutter stated, quote, pursuant to the court's order of December 8th, 2021, Cutter files this statement of interest as the equivalent of an amicus brief.

[00:56:20] Speaker 06:
That's a joint appendix 227.

[00:56:23] Speaker 06:
So when they accepted their status as an amicus in doing so, they accepted the consequences of that status, which is they don't get to appeal.

[00:56:33] Speaker 01:
Let me follow up on Chief Judge Srinivasan's question.

[00:56:38] Speaker 01:
Do you agree that if Qatar had filed a motion for intervention that says we want to intervene on the condition that we don't waive our sovereign immunity by this limited intervention,

[00:56:51] Speaker 01:
And if you, um, district quarter, not willing to essentially rule that that will be the terms of our, um, intervention, um, then, um, then we withdraw our request to, to intervene.

[00:57:10] Speaker 01:
So, so they make clear that like we, we are requesting to intervene only if we get a ruling from you that says that this will not result in a waiver district court.

[00:57:21] Speaker 01:
Do you agree that they could have filed a motion to that effect?

[00:57:31] Speaker 06:
I agree they could have filed a motion to intervene under specific conditions.

[00:57:36] Speaker 06:
And if that motion was denied, then that motion would itself, I believe, be appealed to this court.

[00:57:44] Speaker 01:
And do you agree that they couldn't be forced to intervene on

[00:57:51] Speaker 01:
conditions other than what they, they, um, request.

[00:57:56] Speaker 06:
I would agree.

[00:57:56] Speaker 06:
Either they intervene as requested in the motion or if the district court finds that is not possible, they're not going to compel them to intervene.

[00:58:04] Speaker 06:
Uh, if, if cutter's not seeking to intervene, cutter would not be seeking to intervene.

[00:58:09] Speaker 01:
In other words, I can't be compelled to intervene and wave.

[00:58:14] Speaker 01:
Um, um, if, if, if,

[00:58:18] Speaker 01:
They say we only want to intervene if we're not waiting.

[00:58:22] Speaker 06:
I think that's correct.

[00:58:24] Speaker 06:
And if the court denies that they can then make a decision and either accept that status.

[00:58:28] Speaker 06:
Hey, we're not going to intervene or we're going to intervene under the conditions that the district court allows.

[00:58:33] Speaker 06:
We're going to take up the decision to the court.

[00:58:35] Speaker 03:
And then if they do that and the district court says in response, well, I don't know that you need to do that because all you maybe we can just proceed so that you

[00:58:44] Speaker 03:
you participate in the way that cutter did, then your view would be that no cutter shouldn't accept that because they can get an up or down on the motion so that they can make sure that they preserve their status as an intervener with the party able to appeal.

[00:58:58] Speaker 03:
And they could say, no, we need you to resolve our motion.

[00:59:01] Speaker 03:
And if you don't, we're going to take that up because we want to make sure that we get we get a definitive resolution on whether we can intervene so that we can protect ourselves from the counter argument that we should have intervened.

[00:59:12] Speaker 03:
That's what should happen.

[00:59:13] Speaker 03:
I think that's correct.

[00:59:16] Speaker 03:
That's quite intricate, but I take the point.

[00:59:19] Speaker 06:
But again, we're talking about a hypothetical scenario that just doesn't apply.

[00:59:23] Speaker 06:
We're looking at where we are today with a party that accepted its status as an amicus, did not seek to intervene, and is now seeking to claim standing under dictum and a footnote in an overruled case.

[00:59:36] Speaker 06:
I see I'm out of time.

[00:59:37] Speaker 06:
If with the court's indulgence, I'd like to say a few things about the collateral order.

[00:59:40] Speaker 06:
Yeah, if you could keep it brief, that would be great.

[00:59:42] Speaker 06:
Thank you.

[00:59:43] Speaker 06:
So I agree judge Wilkins you said you have found a case under either collateral order or perlman or the appellant wasn't.

[00:59:51] Speaker 06:
At least the movement in the district court, we're not aware of one either.

[00:59:57] Speaker 06:
Clearly, we know that that under Mohawk, this is a discovery order.

[01:00:01] Speaker 06:
Discovery orders, including those rejecting claims of privilege, are not subject to the collateral order doctrine, even though the Supreme Court recognized there may be some collateral damage.

[01:00:11] Speaker 06:
There may be some harm that is only imperfectly reparable.

[01:00:15] Speaker 06:
Now, Cutter tries to distinguish Mohawk by saying that the privilege here is on an entirely different level from the attorney-client privilege.

[01:00:22] Speaker 06:
But I point the court to pages 22 and 23 of Cutter's reply, where Cutter expressly analogizes the claimed convention protections to a series of attorney-client privilege cases.

[01:00:34] Speaker 06:
And this court itself has recognized the attorney-client privilege as inviolable.

[01:00:40] Speaker 06:
The government talked about

[01:00:42] Speaker 06:
Once the documents are turned over, the convention is violated at that very moment.

[01:00:47] Speaker 06:
Once attorney client privilege documents are turned over, the privilege is violated at that very moment, too.

[01:00:52] Speaker 06:
And yet, under Mohawk, that itself is not enough to invoke the collateral order doctrine.

[01:01:00] Speaker 06:
And we'll submit on the Perlman doctrine on the briefs.

[01:01:03] Speaker 06:
We don't have a disinterested third party here.

[01:01:06] Speaker 06:
Everything in the record shows that.

[01:01:08] Speaker 06:
uh, mandamus.

[01:01:10] Speaker 06:
We don't have a clear abuse of discretion.

[01:01:12] Speaker 06:
We don't have a clear and indisputable right to relief.

[01:01:15] Speaker 06:
The district court relied on all available precedent in its reading of the, uh, of the conventions and even should this court disagree, which we certainly don't think the court should.

[01:01:25] Speaker 06:
We think the district court's order was sound.

[01:01:27] Speaker 06:
It's not the type of, uh,

[01:01:30] Speaker 06:
rampant district court decision that is some type of usurpation of power as discussed in Mohawk that allows for mandamus.

[01:01:36] Speaker 06:
And the last point I'd make before turning it over is this.

[01:01:41] Speaker 06:
I quote from this court's own opinion in the first appeal in this case on the immunity issue.

[01:01:47] Speaker 06:
Court said, quote, immediate appealability is strong medicine that is harmful when misused.

[01:01:54] Speaker 06:
We are now in this case that was filed nearly four years

[01:02:00] Speaker 06:
has still not even begun in earnest.

[01:02:03] Speaker 06:
Defendants have produced virtually no documents.

[01:02:06] Speaker 06:
If this court were to find that Cutter has standing, that this is an appealable order, and further remand to the district court for a document by document review, I promise you, I don't need a crystal ball for this, we're going to be back here on document by document appeals.

[01:02:21] Speaker 06:
Because Cutter's interest here is delayed.

[01:02:24] Speaker 06:
Judge Forrest in the Southern District of New York, when this same issue came up with

[01:02:29] Speaker 06:
that in our hands, documents that it's 281 about cutters tactics.

[01:02:33] Speaker 06:
It just smells like gamesmanship.

[01:02:36] Speaker 06:
So every determination that the district court makes regarding production of particular documents, not just discovery directed to the defendants, but there are third party subpoenas that are out to other prior registered agents.

[01:02:48] Speaker 06:
As to all of those butter is going to appeal those every determination of turning over documents as implicating its privileges and immunities is implicating international

[01:02:57] Speaker 06:
of comedy, we will have piecemeal prejudgment appeals that will be subject to tremendous delay and abuse.

[01:03:04] Speaker 06:
It'll be five more years before anything happens in this case, clearly undermining efficient judicial administration and all of the other very real problems that the final judgment rule of section 1291 was intended to believe.

[01:03:19] Speaker 06:
So with that, I'll turn it over to Mr. Benson.

[01:03:21] Speaker 03:
Thank you.

[01:03:21] Speaker 03:
Thank you, Mr. Saunders.

[01:03:29] Speaker 00:
Mr. Benson.

[01:03:30] Speaker 00:
Good morning.

[01:03:32] Speaker 00:
May it please the court, Daniel Benson for Appellees.

[01:03:35] Speaker 00:
Fortunately, that parade of horribles does not need to and should not take place.

[01:03:41] Speaker 00:
There is the government and Cutter's position that the order, the decision below was categorical is not really true.

[01:03:51] Speaker 00:
The judge made clear that she wasn't ruling on, for example, Bailey, Bailor Bailey,

[01:03:58] Speaker 00:
Situations or construction contractors or the like.

[01:04:02] Speaker 00:
That she was, she was the order applies to these defendants with respect to these documents and this court can confirm.

[01:04:08] Speaker 00:
On that basis, it doesn't need to issue an, an affirmative saying.

[01:04:14] Speaker 00:
You know, if any documents turned over to a 3rd party.

[01:04:19] Speaker 00:
Um, it's, uh, no, not pretty.

[01:04:22] Speaker 00:
It's not no longer in violent bond or that under the Vienna conventions.

[01:04:25] Speaker 00:
It can do a more limited ruling.

[01:04:28] Speaker 00:
I'm not saying that, by the way, that that is wrong.

[01:04:32] Speaker 00:
It may very well be right.

[01:04:34] Speaker 00:
There's a cogent and potentially correct argument that if the government turns over documents to a third party, by definition, they're no longer violent, inviolable.

[01:04:45] Speaker 00:
But here we have

[01:04:46] Speaker 00:
the situation where Qatar put documents in that contained highly confidential trade secrets according to Qatar in the hands of public relations blacks and lobbyists.

[01:05:01] Speaker 00:
Even though it knew that those documents would be subject to inspection at any time on reasonable notice by the US government.

[01:05:09] Speaker 02:
Isn't the district court's decision categorical as to, I mean, you agree that it's categorical as to these

[01:05:16] Speaker 02:
defendants.

[01:05:18] Speaker 00:
Yes, it is categorical.

[01:05:19] Speaker 02:
So how does that fit with the text of Article 24 of the Vienna Convention, which speaks of documents of the mission?

[01:05:27] Speaker 02:
It doesn't seem to speak to who holds them, rather what the documents are.

[01:05:34] Speaker 00:
Well, if the Vienna Convention was adopted after Farah had been in existence for

[01:05:45] Speaker 00:
Probably 30 years.

[01:05:46] Speaker 02:
Well, just put aside Farrah for a second.

[01:05:48] Speaker 02:
Just focus on the text of Article 24.

[01:05:52] Speaker 00:
Professor Denzel, who in the government and Qatar recognizes the leading expert as opined to Congress and in her treatise, she's the leading expert, if not the only expert on the Vienna Conventions, and she's explained what that of the mission

[01:06:09] Speaker 00:
Before Congress, she testified, and I recommend reading her testimony in full, but she testified and opined that documents that a country that Saudi Arabia gave to public relations consultants were not of the mission and were not protected under the Vienna Convention.

[01:06:30] Speaker 00:
If the Vienna Convention had meant to protect those kinds of documents, it would have said wherever they may be and whoever might

[01:06:39] Speaker 00:
be in possession of them, or even more to the point, wherever they may be and whoever may be in possession of them, even if those people who are in possession of them are subject to a host country disclosure requirement.

[01:06:54] Speaker 00:
It doesn't say that.

[01:06:54] Speaker 02:
But it also doesn't say mission documents.

[01:06:57] Speaker 02:
It says documents of the mission, which suggests that they could be held by somebody other than the mission itself.

[01:07:07] Speaker 00:
is, I think, overbroad.

[01:07:09] Speaker 00:
And there was no intention to protect all documents of the mission.

[01:07:16] Speaker 00:
But as Professor Dentz explains, it really meant documents that were in effect on the premises of the mission, or diplomatic couches, or the like.

[01:07:29] Speaker 03:
So what's your view as to when the mission stops, that once the documents leave the premises, they're no longer of the mission?

[01:07:37] Speaker 00:
Well, if they go to third parties, I think there's a very strong argument that they're no longer viable and no longer on the mission.

[01:07:47] Speaker 00:
Period.

[01:07:47] Speaker 03:
Whenever they're given to it, they don't have to reach that issue.

[01:07:50] Speaker 03:
And what's the narrower way to do it then?

[01:07:52] Speaker 00:
If they're given to individuals in the host country who are subject to a disclosure requirement to the host country's government,

[01:08:03] Speaker 03:
So that's the fair argument.

[01:08:06] Speaker 03:
So the broader argument would be once documents are given to a third party, they're no longer of the mission, period.

[01:08:13] Speaker 03:
The narrower argument would be once documents are given to a third party and there's something like Farah, they're no longer of the mission.

[01:08:21] Speaker 00:
Correct.

[01:08:22] Speaker 00:
With the addition that once, I mean the reason for the first argument is that the

[01:08:30] Speaker 00:
the country's cutter, in this case cutter, restraining them is not inviolable by giving them the third parties.

[01:08:36] Speaker 03:
So can I ask this, if cutter invites a third party onto the, excuse me, onto the embassy's premises and says, you're my contractor, I need you to do some work in order for you to be able to do the work, I need you to look at some documents, but I'm really concerned about these documents.

[01:08:53] Speaker 03:
So I'd like you to come on my premises and look at the documents.

[01:08:55] Speaker 03:
I'm going to put you in a separate room.

[01:08:58] Speaker 03:
Here's the documents.

[01:09:00] Speaker 03:
And the contractor looks at the documents and leaves without the documents, but now knows what the documents say and can use that to the benefit of the contracting enterprise, whatever that may be.

[01:09:11] Speaker 03:
You don't think in that situation the documents cease to be subject to the inviolability.

[01:09:18] Speaker 03:
That's correct.

[01:09:19] Speaker 03:
And then if that's true, then does it make all the difference if the country then says, instead of having you come over here,

[01:09:28] Speaker 03:
Here's what I'm going to do.

[01:09:28] Speaker 03:
I'm going to give you these documents, but here's all the conditions.

[01:09:31] Speaker 03:
It's exactly the same conditions that I would have imposed on you.

[01:09:33] Speaker 03:
If you came onto my premises, I'm going to take them to you in an armored truck.

[01:09:37] Speaker 03:
My security guard is going to be standing right next to you while you look at the documents.

[01:09:40] Speaker 03:
I'm going to take them from you, and then I'm going to take them back.

[01:09:43] Speaker 03:
Is it no longer of the mission because they were allowed to leave the premises?

[01:09:48] Speaker 00:
In the hands of barriers, of the ineffective barriers with protection like that, then I think there's an argument that they're still on the mission.

[01:09:56] Speaker 03:
I see.

[01:09:56] Speaker 03:
OK, so it's not a premises specific.

[01:09:58] Speaker 00:
It's once in the hands of barriers or diplomatic coaches or on the premises of the embassy.

[01:10:04] Speaker 00:
But again, this court doesn't need to reach those kinds of issues.

[01:10:08] Speaker 00:
There's no question that even under the others framework, which is a made up framework, but that, you know, that depends on the expectation of confidentiality.

[01:10:19] Speaker 00:
There's no way that a country could have an expectation of privacy when it turns over documents to

[01:10:27] Speaker 00:
FARA registered agents.

[01:10:29] Speaker 02:
That might be why, you know, why they lose on a document by document review, but it doesn't suggest why there should be a categorical.

[01:10:38] Speaker 00:
But if the documents are open to the inspection by the government at any time for three years after the end of the agency of the relationship, how can they have an expectation of privacy with respect to confidentiality?

[01:10:53] Speaker 01:
Can you just clarify

[01:10:56] Speaker 01:
what the document request that's an issue says.

[01:11:01] Speaker 00:
What does it request?

[01:11:03] Speaker 00:
They're asked for categories of documents, communications between Qatar and the defendants, payments by Qatar to the defendants, a whole series of questions like that.

[01:11:14] Speaker 00:
And by the way, I don't profess its ignorance as to what these documents are.

[01:11:19] Speaker 00:
These documents are three categories, documents they sent to

[01:11:24] Speaker 00:
the defendants, documents they receive from the defendants and what they claim are documents between and among the defendants.

[01:11:32] Speaker 00:
They know what those documents are.

[01:11:35] Speaker 00:
They certainly know what the information is that they claim is so sensitive and inviolable.

[01:11:43] Speaker 00:
They could have made us a showing to the district court.

[01:11:46] Speaker 01:
But do we know that all of the documents that fall within the document request

[01:11:52] Speaker 01:
would be subject to the record keeping and inspection requirements are.

[01:12:01] Speaker 00:
And I believe that the inspection requirements of I think that our registration is required to keep all that pretty much all documents.

[01:12:10] Speaker 00:
You look at Farad's very broad requirement and they have to keep the documents open for inspection at any time for so.

[01:12:17] Speaker 01:
So it's your your position.

[01:12:19] Speaker 01:
I'm just trying to understand your position that

[01:12:22] Speaker 01:
Every document that would be responsive to the document requests would fall within our record keeping and inspection required.

[01:12:34] Speaker 00:
Certainly the document, at a minimum, all the documents that our professors to be now concerned about would be.

[01:12:41] Speaker 02:
Okay.

[01:12:42] Speaker 02:
So wouldn't that require quite broad ruling from us though to determine that

[01:12:47] Speaker 02:
Any documents that were available potentially in the future to inspection by the U.S.

[01:12:53] Speaker 02:
government trumps any Article 24 protection that the documents might have?

[01:13:01] Speaker 00:
It doesn't trump Article 24 protection.

[01:13:04] Speaker 00:
The Vienna Conventions provide, just like others contracts provide, that they're subject to the law.

[01:13:11] Speaker 00:
that the Vienna Conventions in Article 41 say that the laws of the host country must be respected.

[01:13:18] Speaker 00:
So the countries who adopted the Vienna Convention, including Qatar, I believe in 1961, knew about Farah.

[01:13:29] Speaker 00:
They knew about article, they obviously adopted Article 41, which said that they agreed to respect laws of the host country.

[01:13:39] Speaker 00:
There's no, I don't think that there's an argument that we're not arguing that, um, Farah Trump's, um, the Vienna Convention, that we are arguing that it's perfectly consistent with the Vienna Convention.

[01:13:51] Speaker 02:
Well, but that, that to the extent something is covered by Farah, it is that to the extent that a document is covered by Farah, that it cannot receive the protections of the Vienna Convention.

[01:14:03] Speaker 00:
Not inviolable.

[01:14:04] Speaker 00:
It's no longer inviolable.

[01:14:06] Speaker 00:
by the actions of the country itself.

[01:14:09] Speaker 02:
I mean, the Department of Justice doesn't take that view.

[01:14:11] Speaker 02:
I mean, they are charged with enforcing both.

[01:14:14] Speaker 02:
I mean, the US government is charged with enforcing both its treaty obligations and its statutory obligations.

[01:14:20] Speaker 02:
And they think that they are, in most instances, compatible.

[01:14:24] Speaker 00:
I think the government is wrong.

[01:14:28] Speaker 00:
I think they're plainly wrong.

[01:14:29] Speaker 00:
I think every authority that has addressed this issue has come down the way

[01:14:35] Speaker 00:
the way Professor Denza has come down, which is documents delivered to people subject to FARA are not inviolable under the Vienna Conventions.

[01:14:45] Speaker 01:
I think you kind of can't have it both ways.

[01:14:47] Speaker 01:
I mean, you say that inviolable under the Vienna Conventions is, you know, is the same as the attorney client privileges considered to be inviolable.

[01:14:59] Speaker 01:
But

[01:15:00] Speaker 01:
There are limited exceptions where privileged documents might be able to be reviewed for some purposes, but not disclosed for other purposes.

[01:15:11] Speaker 01:
And so why can't it be under the Vienna Conventions that it's still considered inviolable?

[01:15:17] Speaker 01:
Maybe under U.S.

[01:15:19] Speaker 01:
domestic law, there's some limited availability for the Justice Department to inspect documents for its compliance purposes, for its counterespionage,

[01:15:30] Speaker 01:
national security purposes, but that doesn't mean that any, um, you know, every Tom, Dick and Harry that files a civil, um, lawsuit can, can have access to the doc.

[01:15:45] Speaker 00:
There's, there's, um, there's no authority or support in, um, the Vienna conventions or in far or any other law that what's

[01:15:57] Speaker 00:
What Petter is arguing for and what the government is arguing for is an analysis of what the reasonable expectations of Petter were.

[01:16:06] Speaker 00:
And attorney-client privilege is a long-standing doctrine that's asserted every day.

[01:16:14] Speaker 00:
This inviolability for FARA documents that are exposed to the public, I mean, that are available for inspection,

[01:16:25] Speaker 00:
every authority that's ruled on it has agreed with our position.

[01:16:30] Speaker 00:
And so when Cutter signed those contracts with these defendants, they knew that Congress said that those documents would be not inviolable.

[01:16:44] Speaker 00:
They knew that Professor Densa said that those documents would not be inviolable.

[01:16:49] Speaker 00:
They knew that the House of Lords had ruled that

[01:16:57] Speaker 00:
of third parties would not be inviolable.

[01:16:59] Speaker 00:
They knew they didn't have any reasonable expectation of confidentiality or of inviolability.

[01:17:06] Speaker 00:
They couldn't have.

[01:17:08] Speaker 00:
So under their own analysis, these documents are not inviolable.

[01:17:12] Speaker 00:
Because of FARA?

[01:17:13] Speaker 00:
Because of FARA.

[01:17:14] Speaker 00:
And because of all the authorities before they signed the contract, conscious contracts that agreed with that analysis.

[01:17:23] Speaker 03:
About FARA?

[01:17:23] Speaker 03:
About FARA.

[01:17:24] Speaker 03:
Yeah.

[01:17:24] Speaker 03:
Can I just ask a basic factual question?

[01:17:27] Speaker 03:
Is it the case that every third party that contracts with a foreign sovereign has to register as a, I take it there's some contractors that don't have to be subject to FARA, or is that wrong?

[01:17:43] Speaker 00:
I think that's correct.

[01:17:44] Speaker 00:
I think it's directed toward contractors that are, I mean a lot of times people I think register out of excessive caution.

[01:17:54] Speaker 00:
It's criminal.

[01:17:57] Speaker 00:
I don't believe that, for example, if a plumber who does work for Qatar would have to register.

[01:18:04] Speaker 00:
I think it's these kinds of activities, propaganda activities, and the purpose of FAR, of course, is to make sure that those clandestine activities are subject to exposure and subject to the government finding out about them.

[01:18:19] Speaker 03:
So can I ask this question then?

[01:18:20] Speaker 03:
If it's true that not everybody who contracts with the

[01:18:25] Speaker 03:
foreign sovereign is subject to FARA, then if we go to a foreign country, and let's just hypothesize a foreign country that's a surveillance state that wants to surveil everything, then they pass something that's much more robust than FARA and just say, every time an embassy within our borders does any business with any third party, any documents they share are subject to surveillance by the government, subject to review by the government.

[01:18:50] Speaker 03:
And would the FARA argument mean that in that country,

[01:18:55] Speaker 03:
that the Vienna Convention basically just doesn't apply, the inviolability principle just doesn't apply to any document, period, because there's this law, this hypothetical law that just allows for robust... No, no, they're changing the expectations of the countries, of the parties, the Vienna Convention.

[01:19:14] Speaker 00:
The Vienna Convention was signed on to by these countries knowing that FAR existed.

[01:19:20] Speaker 00:
Oh, I see.

[01:19:22] Speaker 03:
It's temporarily.

[01:19:23] Speaker 03:
The answer, from your perspective, is that that law post-states, whereas Farah predated.

[01:19:30] Speaker 00:
So there would be an argument that, no, it does not override.

[01:19:35] Speaker 03:
So if there were a country that had that law beforehand, then there would be an argument.

[01:19:40] Speaker 03:
Then that would be the same situation.

[01:19:41] Speaker 00:
Non-inviability.

[01:19:43] Speaker 03:
Across the board, even though it would be very robust non-inviability.

[01:19:50] Speaker 03:
there's no further questions.

[01:19:52] Speaker 03:
Thank you.

[01:19:53] Speaker 03:
Thank you.

[01:19:53] Speaker 03:
Mr Benson.

[01:19:56] Speaker 03:
Thank you.

[01:19:56] Speaker 03:
Uh, Mr Science will give you three minutes for rebuttal.

[01:20:05] Speaker 04:
Thank you, Your Honor.

[01:20:06] Speaker 04:
Just a few quick points.

[01:20:08] Speaker 04:
One on the comedy question going back to Chief Judge Rossens colloquy with Mr Taro.

[01:20:14] Speaker 04:
Um, I agree that comedy does matter right now.

[01:20:18] Speaker 04:
You know, the questions before about, you know,

[01:20:20] Speaker 04:
There's a limited remand what is still open in the district court.

[01:20:23] Speaker 04:
There is a categorical ruling right now that comedy is not available.

[01:20:28] Speaker 04:
The district court reached without looking at anything, without developing a record.

[01:20:32] Speaker 04:
The United States hasn't commented in this proceeding.

[01:20:35] Speaker 04:
It read the court's order is not requesting it.

[01:20:40] Speaker 04:
In the NML case, in the Supreme Court,

[01:20:42] Speaker 04:
We think that what the United States said about comedy and a particular comedy in the context of discovery targeted at third parties is entirely inconsistent with the district court's categorical order.

[01:20:55] Speaker 04:
So in our view, that is a separate and important issue in this appeal that this should be resolved.

[01:21:00] Speaker 04:
And I endorse what Mr.

[01:21:02] Speaker 04:
The document of the mission is a particular phrase, particular construct.

[01:21:08] Speaker 04:
We think that will be quite protective on remand.

[01:21:11] Speaker 04:
But international comedy is a different way of getting at the protection in appropriate circumstances.

[01:21:16] Speaker 04:
of sensitive governmental information.

[01:21:18] Speaker 04:
And it very well may be that there could be some close questions under the Vienna Convention where there is an easier answer once you get into the documents on comedy.

[01:21:26] Speaker 04:
So we think that is an issue that is presented to the court.

[01:21:32] Speaker 04:
And having the courts present back on that issue would be helpful for revamp proceedings.

[01:21:38] Speaker 04:
On jurisdiction, I don't want to, unless the court has questions, I don't want to belabor that point.

[01:21:44] Speaker 04:
I do just want to create a factual point that I believe Mr. Saunders said.

[01:21:48] Speaker 04:
He referred to the minute order of December 8, 2021 as deciding that Qatar had a MECUS status.

[01:21:55] Speaker 04:
The court said that Qatar could file the equivalent of MECUS briefs, but no pending motion requires addressing Qatar's exact status in this case.

[01:22:03] Speaker 04:
I don't think the district court ever changed that until it retroactively said in its final decisions here that actually really was just an amicus all along.

[01:22:14] Speaker 04:
So I think really was proceeding through this minefield without a compass.

[01:22:19] Speaker 04:
And it would be troubling for a foreign sovereign to basically be deemed to have given up its rights under a treaty for not doing it one particular way.

[01:22:29] Speaker 04:
Finally, on the Farah points, going to the last point that was addressed about reciprocity concerns, this is not hypothetical.

[01:22:37] Speaker 04:
Russia has a Farah-type law that has government audit and inspection provisions.

[01:22:43] Speaker 04:
And so I think I would take seriously that the United States has not endorsed Mr. Gordy's position that Farah just initiates any

[01:22:54] Speaker 04:
any inviolability under the conventions.

[01:22:56] Speaker 04:
I think there is, you know, I think we would, our view is that the best view is that inviolability could be argued in the case of the 50 or JK knocking, but it really doesn't need to get into that.

[01:23:11] Speaker 04:
I think this consent concept exists in the treaty in article 22, you know, inviolability of mission premises is rejected.

[01:23:19] Speaker 04:
The next sentence talks about

[01:23:20] Speaker 04:
the possibility of consent, you know, it is possible that you could view sort of the decision to engage a contractor under Farah's regime, understanding that it is only law enforcement officers not concerned with snooping around in the sovereign secrets, but focused on enforcement of Farah, that that could be a way forward, that that could be assumed to be correct in a way that doesn't undermine inviolability in this proceeding.

[01:23:45] Speaker 01:
Let's suppose we find that the only path available to you is mandamus.

[01:23:52] Speaker 01:
Ordinarily, we deny mandamus unless there's some clear precedent that demonstrates that the district court's position was error.

[01:24:08] Speaker 01:
Not for something where, or the district court

[01:24:14] Speaker 01:
you don't clearly use like there was a standard that's been articulated in the case law and the district court did not use that standard.

[01:24:25] Speaker 01:
Um, how do you meet that standard here?

[01:24:30] Speaker 04:
Your honor, the whole responses.

[01:24:32] Speaker 04:
One, I think this court and others, particularly in the context of foreign sovereigns,

[01:24:36] Speaker 04:
has taken a more pragmatic view of the threshold for mandamus review.

[01:24:40] Speaker 04:
This court's decision in Papandreou, I think, makes that point, that when you talk about your potential injury to a foreign sovereign, the court is going to be a little bit more forward leaning in recognizing those types of arguments.

[01:24:54] Speaker 04:
This comes up also in context of executive branch privileges.

[01:24:58] Speaker 04:
We cited the Karnosky case in the Ninth Circuit, where I don't think it was sort of clear error

[01:25:04] Speaker 04:
that normally might have triggered, but because of the fraud issues raised by the deliberative process issue in that case was reviewed on mandamus.

[01:25:12] Speaker 04:
That said, I think the normal standard is met here.

[01:25:15] Speaker 04:
We don't have, you know, this is a complex and novel issue.

[01:25:21] Speaker 04:
There's also one that at least now we have the United States government

[01:25:24] Speaker 04:
saying that this treaty interpretation by the district court was wrong.

[01:25:28] Speaker 04:
We had asked the district court, you know, we think that that you should defer decision until you go through a document by document process.

[01:25:35] Speaker 04:
We asked the district court if you are inclined not to do that.

[01:25:38] Speaker 04:
This is really sensitive stuff and we think you should ask the defendants asked to do that.

[01:25:43] Speaker 04:
Pardon?

[01:25:44] Speaker 04:
Did the defendants make that request?

[01:25:46] Speaker 04:
Alright, I don't recall it that they did.

[01:25:49] Speaker 04:
I know that cutter and it's and it's and it's see that gets me back to my problem.

[01:25:54] Speaker 01:
I guess maybe as an old district former district court judge and trial court litigate is that like now you're wanting us to say that that the district court aired because they didn't take an approach that wasn't put to it by a party.

[01:26:12] Speaker 01:
Your honor, and then me because can't preserve issues.

[01:26:16] Speaker 04:
Yeah, I think I go back to where I started a few minutes ago, the district court didn't tell us that we were in amicus at that point said that I'm not, I don't need to resolve your status yet.

[01:26:28] Speaker 04:
So I think we were just operating without guidance about what the best way to do this was the issues there.

[01:26:34] Speaker 04:
I really made that point only for the very limited purpose that

[01:26:37] Speaker 04:
We know now that the United States government, which is entitled to great deference and treaty interpretation, agrees with us that the district court was wrong.

[01:26:48] Speaker 04:
We had suggested that there was a way to find out the United States position earlier in the day.

[01:26:52] Speaker 04:
That was my limited point.

[01:26:56] Speaker 04:
Thank you, counsel.

[01:26:57] Speaker 04:
Thank you to all counsel.

[01:26:58] Speaker 04:
We'll take this case under submission.