Integrated Communications & Technologies, Inc. et al v. Hewlett-Packard Financial Services Company et al

Filing 484

District Judge Leo T. Sorokin: ORDER entered. The Motion for Remote Rule 35 Medical Examinations (Doc. No. 451 ) is DENIED. (Currie, Haley)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
INTEGRATED COMMUNICATIONS &
TECHNOLOGIES, INC. et al.,
Plaintiffs,
v.
HEWLETT-PACKARD FINANCIAL
SERVICES COMPANY et al.,
Defendants.

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Civil No. 16-10386-LTS

ORDER ON PLAINTIFFS’ MOTION FOR REMOTE
RULE 35 MEDICAL EXAMINATIONS (DOC. NO. 451)
February 24, 2021
SOROKIN, J.
Plaintiffs Jason Yuyi and Cathy Yu (and only these two Plaintiffs 1) have filed a motion
requesting the Court relieve them of one requirement: to appear in person in the United States for
their Rule 35 examinations. Doc. No. 451. To obtain this relief, they concede that they must
demonstrate “good cause.” See Doc. No. 452 at 13. The Court need not determine whether they
must meet a higher standard as Defendants contend, see Doc. No. 471 at 19–20, for the record
before the Court fails to demonstrate good cause. This is so for several straightforward reasons.
A central question and the premise of the motion is whether Yuyi and Yu can reasonably
come to the United States under present conditions in time for their examinations and, if not,

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The Motion states it is filed by “Plaintiffs” and as relief requests that the Court “set aside the
ruling in its Amended Scheduling Order requiring them to appear in the United States.” Doc. No.
451. The Memorandum addresses only Plaintiffs Yuyi and Yu. See Doc. No. 452. The Court thus
construes the Motion as filed on behalf of only these two Plaintiffs.

why not. Yuyi and Yu, both citizens of China, elected both to file this lawsuit and to file it in the
United States. That occurred in 2015. Defendants’ counsel and the Court have repeatedly urged
the Plaintiffs as far back as late 2019 to make arrangements to come to the United States for their
depositions and the Rule 35 examinations. Of course, nothing prevented them from making
arrangements as soon as they authorized the filing of the lawsuit, as they knew then what
remains obvious now: their presence will be required at the trial in the United States. Yuyi and
Yu first applied for visas to come to the United States by making application with the United
States Embassy in Beijing, China on November 6, 2020. Doc. No. 453-4. At that time, the
deadline for completion of the Rule 35 examinations was November 13, 2020. Doc. No. 375.
The Court need not now determine whether Yuyi and Yu are correct in their assertion that they
made “timely visa applications,” Doc. No. 478 at 2. On November 10, 2020, the Court extended
the deadline to early 2021. Doc. No. 410 at 65–66. Still later, in response to a joint motion from
all parties filed in mid-December and allowed on December 28, 2020, the Court extended the
deadline to April 1, 2021. Doc. No. 447. No one then indicated that the revised schedule
depended upon remote examinations for these two Plaintiffs.
Neither Yuyi nor Yu have made any other or further efforts to come to the United States
for their Rule 35 examinations. The record before the Court reveals that citizens and residents of
China can travel to Hong Kong, and that in Hong Kong interviews for visas at the United States
Embassy are available in a matter of days with visas issuing approximately a week thereafter.
Hong Kong is a reasonable place for the Court to expect Yuyi and Yu to go to seek a visa. While
ferries from Macau to Hong Kong are apparently not operating, other methods of travel from
China to Hong Kong are apparently available. And travel to Hong Kong poses less burden to
Plaintiffs, who are in China, than would travel to places like Islamabad or Moscow to obtain a

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visa. While non-citizens entering the United States are subject both to a quarantine requirement
and a negative COVID-19 test, that, along with the visa application process, can reasonably still
be accomplished in time for the April 1, 2021 deadline. The assertion by Yuyi and Yu that the inperson requirement will require them to commit a crime in the event the nasal swab returns
positive for COVID-19 is frivolous. See Doc. No. 478 at 4. Nothing in the Order requires them
to come to the United States in violation of the laws of the United States. 2
Simply put, neither Yuyi nor Yu have attempted to comply, let alone demonstrated that
they cannot reasonably comply, with the requirement to come to the United States for the Rule
35 examinations.
Two last points bear mention. Even during the COVID-19 pandemic, Rule 35
examinations are occurring in person. Doc. No. 478 at 4 n.2 (citing King v. Deming, No. 3:19cv-30018-MGM, 2020 WL 4369702 (D. Mass. July 30, 2020)). Second, Yuyi and Yu suggest
guidance from the CDC counsels against travel. The CDC guidance cited does not address
specifically the issue at hand: Rule 35 examinations (let alone examinations in the circumstances
of this case). Nothing in the record submitted by the parties nor in the Court’s experience
grappling with the COVID-19 pandemic suggests that the travel required of Yuyi and Yu will
necessarily expose them to unsafe conditions.

2

The same conclusions apply to their assertion that China will not permit them to leave.
Plaintiffs’ memo asserted that China’s policy treated foreign litigation as “non-essential” travel
which is prohibited. Doc. No. 452 at 10–11. The document issued by the Chinese government
cited by the Plaintiffs, however, made no mention of foreign litigation and contains no
suggestion that the Chinese government treats such an activity as “non-essential.” See Doc. No.
453-8. Of course, the Court does not expect or require them to violate the laws of China.
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The Motion for Remote Rule 35 Medical Examinations (Doc. No. 451) is DENIED. 3

SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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Nothing in this Court’s Order prevents Plaintiffs from renewing their request in the event they
attempt in good faith to come to the United States but cannot reasonably do so. The Court would
then evaluate that request and address it appropriately, including whether any remedial measures
or sanctions were appropriate in response to Plaintiffs’ failure to make themselves available for
the necessary examinations as ordered by this Court. The Court cautions that even if Plaintiffs
are unable to come to the United States reasonably, neither that circumstance nor litigation over
it is a basis to avoid any Rule 35 examination within the deadline established by the Court,
absent express authorization from the Court.
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