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Grounded: U.S.-Based Litigation in the Wake of the Coronavirus Outbreak

IPRDaily

Scott D. Stimpson, Trent S. Dickey, Tod M. Melgar, Steven Z. Luksenberg

March 13, 2020

The recent outbreak of the Coronavirus has caused widespread concern in the international community. To contain the virus’ spread, the United States and many other countries have issued travel restrictions for individuals who have recently been in China.[i] On February 2, 2020, the United States began denying entry to foreign nationals who have been in China in the 14 days prior to their arrival.[ii] This article discusses options and recommendations for addressing circumstances when you or your employees are required to appear for a fast-approaching deposition, hearing or even a trial in the United States, but the travel restrictions imposed will prevent timely compliance.    

When attendance in the United States for a litigation is required during the travel restriction period, the first step is to contact the adverse party’s attorney to discuss rescheduling. Virtually all United States courts require attorneys to attempt to work out scheduling conflicts and needed delays between themselves without the court’s involvement. Consequently, the opposing party should be amenable to reasonable postponements during the pendency of the travel restrictions. Sometimes counsel agree to hold certain depositions for a short time after the date fact discovery is scheduled to end. If the opposing party refuses to be reasonable or cooperative, then one should consider filing a motion (before the discovery deadline); most judges accommodate reasonable requests for postponements for good cause and unavoidable events. To prevent prejudice, the court may simply extend the overall schedule if there is a belief that the restrictions will end in due course.[iii] 

When timing is more critical and it is not practical to adjourn depositions despite the travel restrictions, one option is to reschedule the deposition to Hong Kong, assuming, of course, that travel to Hong Kong is permitted at the time. Hong Kong is often a venue for depositions of Chinese nationals because the PRC does not permit taking depositions domestically for use in foreign litigation, but they are acceptable in Hong Kong. Another alternative to a live, in-person deposition is to conduct the deposition by videoconference with the witness in Hong Kong - depositions via Skype or other videoconference systems can be quite effective, cost-efficient, and their recordings are often admissible in court. A less favored option is to offer to provide the requested information in response to a proposed Letter of Request pursuant to the Hague Evidence Convention. This form of formal written questions is legal in both China and the United States as signatories of the Hague Convention, but they can take a long time to be processed by the Chinese authorities. While deposing counsel generally do not favor written questions over live testimony, they can still be effective for less-important witnesses. 

Whether by party agreement or opposed, courts have permitted these alternatives to live, in-person testimony where: (i) the deponent's failure to attend a deposition was not the result of willfulness, bad faith, or fault on deponent's part; (ii) the deponent has diligently attempted to gain entry into the United States for the purpose of attending the deposition; and (iii) if such exceptional circumstances exist as to make it desirable, in the interest of justice.[iv] Courts may allow live video testimony at hearings and trials upon a showing of good cause.[v]

In general, United States courts seek to accommodate witnesses when special circumstances like the travel restrictions exist in order to minimize potential prejudice. Hopefully the Coronavirus concerns will end soon and these options will not be needed. 

[i] Coronavirus: These Countries, Airlines Restrict Travel to China, Bloomberg.com, https://www.bloomberg.com/news/articles/2020-02-02/coronavirus-these-countries-airlines-restrict-travel-to-china (last visited Feb. 4, 2020).

[ii] US Travel Restrictions Go into Effect to Combat Coronavirus Spread, CNN.com, https://www.cnn.com/2020/02/02/us/coronavirus-us-travel-restrictions/index.html (last visited Feb. 4, 2020).

[iii]Repet, Inc. v. Zhao, ED CV 15-2315-VAP (SPx), 2018 U.S. Dist. LEXIS 230366, at *4-5 (C.D. Cal. Jan. 16, 2018).

[iv]Baraz v. United States, 181 F.R.D. 449, 452-53 (C.D. Cal. Jul. 6, 1998); Repet, 2018 U.S. Dist. LEXIS 230366, at *10-17.

[v] Fed. R. Civ. P. 43(a) (“For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.”)