He et al v. Rom et al
Opinion & Order signed by Judge James S. Gwin on 10/13/16. The Court grants defendant Rom's motion for an extension of the discovery deadline and orders defendant Rom to depose plaintiffs He and Zheng by 10/25/16 as set forth in this ord er. The Court grants plaintiffs' motions to testify at trial by videoconference and grants plaintiffs' motion to permit witness Xianyao Wu to testify at trial by videoconference. The parties shall coordinate taking witness Wu's depos ition by 10/27/16 as set forth in this order. The Court further grants plaintiffs' motion to participate in the final pretrial conference scheduled for 10/25/16 by telephone. Counsel will be provided with the Court's teleconference information by email. (Related Docs. 159 , 161 , 162 , 163 , 164 , 167 , 168 , 175 , 179 , 180 , 181 , 182 , and 185 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------RUI HE, et al.,
DAVOR ROM, et al.,
CASE NO. 15-cv-1869
OPINION & ORDER
[Resolving Docs. 159, 161, 162, 163,
164, 167, 168, 175, 179, 180, 181,
-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs Rui He, Xiaoguang Zheng, and Zhenfen Huang (collectively, “Plaintiffs”) are
Chinese investors who say that Defendant Davor Rom defrauded them. This opinion resolves
motions filed by the parties concerning remote participation by Chinese residents in this
Defendant Rom wanted to depose Plaintiffs He and Zheng,1 but Chinese law prohibits
taking depositions in China for use in foreign courts.2 This Chinese law became a problem after
Plaintiffs He and Zheng applied for visas to enter the United States for trial, but the U.S.
embassy denied their applications.3 Unable to depose He and Zheng in either the U.S. or China,
Defendant Rom filed an unopposed motion asking this Court to extend the discovery deadline so
that the Defendant can depose Plaintiffs He and Zheng in Hong Kong.4 This Court grants the
motion and orders Defendant Rom to depose He and Zheng by October 25, 2016.
Id. at 2. See, e.g., U.S. Department of State Bureau of Consular Affairs, China: Legal Considerations (Nov. 15,
2013) (https://travel.state.gov/content/travel/en/legal-considerations/judicial/country/china html).
Doc. 159 at 2; Doc. 163 at 2.
Case No. 15-cv-1869
Plaintiffs He and Zheng seek permission to testify at trial by videoconference.5
Defendant Rom opposes.6 Federal Rule of Civil Procedure 43(a) gives a trial court discretion to
permit videoconference testimony “[f]or good cause in compelling circumstances and with
appropriate safeguards.” The Court finds Plaintiffs He and Zheng have good cause to testify by
videoconference because they cannot legally enter the United States despite their genuine efforts
to acquire visas.7 This Court also concludes that adequate safeguards are in place. For instance,
videoconferencing will allow the jury to listen to He and Zheng’s testimony and to observe their
demeanor in real time.8 The Court grants Plaintiffs He and Zheng’s motions to testify at trial by
Next, Plaintiffs ask this Court to allow witness Xianyao Wu to testify by videoconference
at trial.9 Ms. Wu resides in China and says she is suffering from an illness that requires regular
medical attention.10 Ms. Wu would need to travel over 7,000 miles while ill to testify in person.
This Court concludes that witness Wu has good cause to testify at trial by videoconference and
that adequate safeguards are in place.
Defendant Rom requests that this Court order Ms. Wu to travel to Cleveland for pre-trial
deposition.11 Because of the distance and her health concerns, the Court declines to order Ms.
Wu to travel to Cleveland. The Court also notes Chinese law prohibits deposing Ms. Wu in
China. Therefore, directs the parties to coordinate taking witness Wu’s deposition in Hong Kong
no later than October 27, 2016.
Docs. 159; Doc. 163 at 2.
Doc. 161; Doc. 168.
Doc. 159 at 2; Doc. 163 at 2.
See Jennings v. Bradley, 419 F. App’x 594, 598 (6th Cir. 2011).
Id. at 2-3. The Court does not address the Plaintiffs’ other arguments supporting Ms. Wu’s remote trial testimony.
Doc. 179 at 6.
Case No. 15-cv-1869
Plaintiffs also seek permission to participate in the final pretrial conference by phone.12
This Court grants the request.13
In conclusion, this Court GRANTS the Defendant’s motion to extend discovery,
GRANTS Plaintiffs He and Zheng’s motion to testify at trial by videoconference, GRANTS the
Plaintiffs’ motion to allow Xianyao Wu to use videoconferencing to testify at trial, and
GRANTS the Plaintiffs’ motion to participate in the final pretrial conference by phone.
IT IS SO ORDERED.
Dated: October 13, 2016.
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
The 2007 Advisory Committee Notes on Fed. R. Civ. P. 16 state that it is sufficient for an absent party to “be
available by . . . telephone.”
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