Court Finds Plaintiff’s Testimony from Mainland China Unlawful
We’ve blogged before about Mandarin Chinese interpreting services for virtual remote depositions and about the conveniences and challenges associated with remote deposition testimony, especially in the times of coronavirus. In the case discussed below, the court found that the plaintiff’s testimony from mainland China was unlawful and barred plaintiff from testifying remotely any further. The court also awarded the defendant sanctions as a result of plaintiff’s counsel’s actions.
Class Action Lawsuit by Chinese Mandarin-Speaking Plaintiffs
In Ji and Li v. Jling, Inc., the plaintiff filed a class action lawsuit for violations of the Fair Labor Standards Act (“FLSA”), 28 U.S.C. § 201 et seq. and the New York Labor Law, N.Y. Lab. Law § 190 et seq. Plaintiffs worked as cooks in a restaurant kitchen in New York and alleged wage and hour violations pursuant to these laws. Two days before the expiration of the discovery deadline, the defendants learned that the lead plaintiff had left the county and moved to China.
Consequently, the defendants filed a motion to compel plaintiff’s testimony and requested an order from the court compelling the lead plaintiff to appear in-person for his deposition or, alternatively, for an order requiring the plaintiffs to bear the costs associated with conducting the plaintiff’s deposition remotely.
Mandarin-Speaking Plaintiff Requests Permission to Testify Via Videoconferencing
In lieu of responding to the defendant’s motion to compel, the plaintiffs moved for leave to file an amended complaint along with a separate motion requesting leave to conduct the Mandarin-speaking plaintiff’s deposition via videoconference. Following a hearing, the court granted the defendant’s motion for leave to proceed by videoconference but ordered the plaintiff to appear at the defendant court reporter’s office near the plaintiff’s home in China. Defendants selected Hong Kong for the plaintiff’s deposition since it was the closest location where the plaintiff’s deposition could be lawfully conducted.
Plaintiff subsequently requested a reconsideration of the court’s ruling regarding the location of the plaintiff’s deposition, arguing that the Chinese government precluded a United States lawyer from taking the deposition of a Chinese citizen within the country’s borders without the government’s consent. Accordingly, plaintiff argued that it was nearly impossible for him to appear for a deposition in Hong Kong as the court had ordered. Plaintiff later filed a supplemental letter informing the court that he had, in fact, obtained permission to travel to Hong Kong for his deposition but that the costs associated with such travel would cause an “undue hardship.”
Plaintiff then requested the court’s permission to have his deposition taken via videoconferencing through Skype or a similar service, but defendants opposed this request as well on the grounds that it would likely violate Chinese law in that Chinese nationals are prohibited from being witnesses in U.S. trials within Chinese territory. Ultimately, the plaintiff appeared for his deposition in person in Hong Kong to testify remotely.
Following the plaintiff’s deposition, the Chinese Mandarin-speaking plaintiff moved the court to allow plaintiff to submit his testimony in lieu of live testimony at trial or, in the alternative, to allow the plaintiff to testify at trial via videoconference. In support of the motion, plaintiffs argued the plaintiff was not able to enter the United States legally. Defendants opposed this request, arguing that the plaintiff had not demonstrated good cause to overcome the general rule requiring parties to testify in open court. Defendants contended that allowing plaintiff to testify via videoconference at trial would be very complicated and that plaintiff would have to travel outside of China to testify via videoconference due to governmental restrictions.
The court denied the plaintiff’s request to submit his deposition testimony in lieu of testifying at trial but granted the plaintiff’s motion to testify via videoconference at trial.
Plaintiff Violates Chinese Law by Testifying from Chinese Mainland
At trial, the Mandarin-speaking Plaintiff testified by videoconferencing. When asked where he was located at the time of his testimony, the plaintiff responded that he was in Tianjin, China. In response to this, defense counsel noted on the record that the plaintiff’s act of testifying from mainland China violated the court’s prior order as well as Chinese law. The court instructed the parties to proceed, indicating that the issue would be dealt with at a later time.
Several problems arose during the course of the plaintiff’s remote testimony at trial. First, the video feed was not through a professional service, so the video and audio quality was very poor. In addition, the Chinese plaintiff was not in possession of the defendant’s exhibits, so the court had to stop the plaintiff’s testimony and instruct the plaintiff’s counsel to send plaintiff copies of the defendant’s exhibits.
In addition, defense counsel continued to express concern over the transmission of testimony in a foreign jurisdiction. The defendant’s attorney noted that there are criminal penalties for everyone involved in the proceeding and, as someone who had himself traveled to China several times, did not want to be implicated in any illegal activities. Plaintiff’s counsel explained that they had planned for the plaintiff to go to Taiwan to provide his testimony via videoconference but that he was stopped before he boarded the airplane because he did not have a special permit to travel from China to Taiwan. Plaintiff’s counsel also noted that he did not know whether or not it was lawful for the plaintiff to testify from mainland China. The court then directed the parties to research the issue and submit an answer to the court by the next morning.
Plaintiff’s counsel informed the court that he did not think that the plaintiff violated Chinese law because the officer administering the plaintiff’s oath was in the United States. However, plaintiff’s counsel conceded that “China regards the administering of oaths by foreign attorneys and consular officials as a violation of China’s judicial sovereignty” and, consequently, “[w]hen foreign attorneys or consular officials administer an unauthorized oath in China, the penalties may include arrest, detention, expulsion, or deportation of all participants in the oath.”
The parties went back and forth on the issue, and the court ultimately precluded the plaintiff from testifying any further and struck his testimony. The court requested plaintiff to produce further law regarding penalties related to violating Chinese law on this topic, noting that the only authority he had was a section of the Civil Procedure Law of the People’s Republic of China that had been translated from Simplified Chinese into English.
Defendant Files Motion to Bar Testimony, Enforce Settlement, & for Sanctions
The parties ultimately settled the matter and a submitted a written agreement to the court. The settlement fell through, and the defendant filed a motion seeking to have the plaintiff’s claims dismissed, the plaintiff’s testimony stricken, the settlement enforced, and the plaintiff’s counsel sanctioned. The court denied the defendant’s motion to enforce the settlement agreement but granted the defendant’s motion to strike the plaintiff’s testimony in its entirety and bar plaintiff from testifying remotely in the case. The court held that “it is therefore undisputed that, by testifying via video link while located in mainland China, [plaintiff] violated Article 277 of the Chinese Civil Law. By participating in those proceedings, Defendants’ counsel and potentially all other parties involved violated Article 15 of the Regulations and, thus, could be fined under Article 30. Further, these violations potentially subjected the participating parties to deportation from China under Article 81 of the Administration Law as well as criminal liability under Article 13 of the Chinese Criminal Law.” The court also granted the defendant’s motion for sanctions, holding that plaintiff’s counsel was unprepared to proceed to trial and had deceived the court into believing that the plaintiff was testifying lawfully from outside of China. Accordingly, the court ordered the plaintiff to pay the defendants’ attorneys’ fees and costs incurred in preparing for and attending the trial.
The case is Ji and Li v. Jling, Inc., et al. decided by U.S. Magistrate Judge Steven Locke on March 31, 2019 in the United States District Court for the Eastern District of New York.
All Language Alliance, Inc. provides court-certified Mandarin interpreters for remote virtual depositions via Video remote interpreting (VRI) and Over-the-phone interpreting (OPI), and Mandarin deposition interpreters for in-person live deposition interpreting in the U.S. and worldwide in U.S. litigation and discovery.
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