International Swimming League, LTD v. World Aquatics

Opinion

1 2 3 6 7 INTERNATIONAL SWIMMING Case No. 18-cv-07394-JSC LEAGUE, LTD, 8 Plaintiff, ORDER RE: ISL’S TRIAL BRIEFS 9 v. Re: Dkt. Nos. 531, 532 10 WORLD AQUATICS, 11 Defendant.

12 13 On January 6, 2026, International Swimming League, LTD (“ISL”) filed trial briefs asking 14 the Court: (1) to allow Konstantin Grigorishin to testify remotely at trial, (Dkt. No. 531); and (2) 15 to preclude evidence or argument “the filing of the instant lawsuit and resulting effect on sponsors 16 constituted an alternative or superseding cause of ISL’s damages,” (Dkt. No. 532).1 World 17 Aquatics opposes both requests. (Dkt. Nos. 534, 535.) Having carefully considered the parties’ 18 submissions, the Court DENIES ISL’s requests. The Court does not find “good cause in 19 compelling circumstances” to allow Mr. Grigorishin’s remote testimony, Fed. R. Civ. P. 43(a), 20 and ISL has not explained why the Court can prevent the jury from considering evidence which 21 may be relevant to causation of ISL’s damages. 22 I. MOTION TO PERMIT MR. GRIGORISHIN TO TESTIFY VIA LIVE VIDEO 23 Federal Rule of Civil Procedure 43(a) provides “[f]or good cause in compelling 24 circumstances and with appropriate safeguards, the court may permit testimony in open court by 25 contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a). “A party who 26 could reasonably foresee the circumstances offered to justify transmission of testimony will have 27 1 special difficulty in showing good cause and the compelling nature of the circumstances.” In re 2 Kirkland, 75 F.4th 1030, 1044 (9th Cir. 2023) (quoting Fed. R. Civ. P. 43(a) advisory committee’s 3 note to 1996 amendment) (quotation marks omitted). 4 ISL previously asked the Court to allow Mr. Grigorishin to testify at trial via video because 5 he could not lawfully enter the United States. (Dkt. No. 490 at 12-14.)2 At the November 18, 6 2025 pretrial conference, the Court explained given Mr. Grigorishin was deposed remotely, it did 7 not “see any prejudice to defendant” by allowing remote testimony, but the Court would “need— 8 right up to trial, . . . proof that he’s made every effort to be here.” (Dkt. No. 515 at 63-64.) So, in 9 its subsequent order, the Court wrote:

10 Mr. Grigorishin’s “inability to lawfully enter the United States [would] constitute[] good cause in compelling circumstances to 11 justify” testimony via video, especially as his deposition was conducted remotely. See Monserrate v. K.K. Machine Co., Inc., No. 12 10-3732 (TLM), 2013 WL 1412194, at *1 (E.D.N.Y. Apr. 8, 2013). However, Plaintiff has not shown Mr. Grigorishin “ha[s] pursued and 13 [] been denied a visa to the United States.” See El-Hadad v. United Arab Emirates, 496 F.3d 658, 669 (D.C. Cir. 2007). The Court holds 14 Plaintiff’s request for Mr. Grigorishin to testify via video in abeyance pending evidence he applied for and failed to obtain a visa to enter 15 the United States. 16 (Dkt. No. 513 at 8.) 17 ISL now presents evidence Mr. Grigorishin applied for a B-1/B-2 visa on December 18, 18 2025, and interviewed at the U.S. Embassy in Switzerland on December 30, 2025. (Dkt. No. 531- 19 1 ¶¶ 6, 9, 10.) At the conclusion of the interview, the consular officer “refused to grant Mr. 20 Grigorishin a visa” and informed him his application would require “administrative processing” 21 and his submission of a Form DS-5535 with additional information. (Id. ¶ 11.) Mr. Grigorishin 22 submitted the Form DS-5535 on January 5, 2026. (Id. ¶ 16.) As of January 6, 2026, he had not 23 obtained a visa, and his immigration counsel declares “the Embassy is unlikely to provide Mr. 24 Grigorishin with a final determination regarding the application for several months, if not years.” 25 (Id. ¶ 17.) Also on January 6, 2026, Mr. Grigorishin asked U.S. Customs and Border Protection 26 2 ISL also asked the Court to issue an order requesting U.S. Customs and Border Protection grant 27 Mr. Grigorishin temporary admission to the United States. (Dkt. No. 483.) Because ISL did not 1 (“CBP”) to parole him into the United States; as of that day, CBP had not made a decision on his 2 request. (Id. ¶ 19.) 3 Upon review of the entire record, the Court does not find “good cause in compelling 4 circumstances” to permit Mr. Grigorishin’s remote testimony. See Fed. R. Civ. P. 43(a). In 2018, 5 ISL chose to bring this case in the United States although Mr. Grigorishin—ISL’s founder, the 6 litigation’s funder, and a likely witness—had had his visa revoked by the State Department in 7 2016. (Dkt. No. 531-1 ¶ 7; see also Dkt. No. 532 at 7.) And the United States denied Mr. 8 Grigorishin’s visa application in 2019, suggesting a “high likelihood that any [future visa] 9 application would also be denied.” (Dkt. No. 531-1 ¶ 8.) So, ISL should “reasonably [have] 10 foresee[n] the circumstances” preventing Mr. Grigorishin’s live testimony and faces “special 11 difficulty in showing good cause and the compelling nature of the circumstances.” See In re 12 Kirkland, 75 F.4th at 1044 (quotation marks and citation omitted); see also Herwick v. Budget 13 Rent A Car System Inc., No. CV 10-00409 SJO (PLAx), 2011 WL 13213626, at *5 (C.D. Cal. 14 Mar. 22, 2011) (denying video testimony request when the “[p]laintiffs were on notice from the 15 early stages of this litigation that they would be unable to re-enter the Unted States,” and so 16 reasonably “foresaw that they would be unable to attend trial but failed to take precautionary 17 steps”). That certain New York courts have found good cause in compelling circumstances for 18 witnesses in less foreseeable situations is unavailing. See Virtual Architecture, Ltd. v. Rick, No. 19 08-CV-5866 (SHS), 2012 WL 388507, at *2 (S.D.N.Y. Feb. 7, 2012) (allowing plaintiff’s witness 20 to testify remotely due to international travel and visa requirements); In re Rand Int’l Leisure 21 Prods., LLC, No. 10-71497-AST, 2010 WL 2507634, at *4 (E.D.N.Y. June 16, 2010) (finding 22 international travel imposed “undue burden” on creditor witnesses and formed “compelling 23 circumstance for remote testimony). 24 Furthermore, ISL has known since February 2025 this jury trial would begin on January 25 12, 2026. (Dkt. No. 465 at 3.) However, Mr. Grigorishin decided to wait until December 18, 26 2025—less than a month before the start of trial—to apply for a visa. (Dkt. No. 531-1 ¶ 9.) Mr. 27 Grigorishin’s application is now in “administrative processing” which may take “several months, 1 altogether unable to obtain a visa; instead, he simply appears to have waited too long to apply. Cf. 2 Monserrate v. K.K. Machine Co. Inc., No. 10-3732 (TLM), 2013 WL 1412194, at *1 (E.D.N.Y. 3 Apr. 8, 2013) (allowing remote testimony when the plaintiff was “statutorily prohibited from” 4 obtaining a visa). To explain Mr. Grigorishin’s delay, his immigration counsel declares “[i]t was 5 decided that the most effective strategy would be to submit a visa application in December to 6 highlight Mr. Grigorishin’s need to travel to the United States in advance of the approaching trial.” 7 (Dkt. No. 531-1 ¶ 8.) ISL also stated at the pretrial conference Mr. Grigorishin had waited to 8 apply for a visa until the Court decided whether to issue an order requesting CBP grant him 9 temporary admission. (Dkt. No. 515 at 63.) Neither argument persuades the Court compelling 10 circumstances exist. 11 ISL appears to have been under the impression as long as Mr. Grigorishin had applied for 12 and not obtained a visa by the start of the trial, the Court would allow his remote testimony. But 13 the Court must still find “good cause in compelling circumstances” to permit his remote 14 testimony. See Fed. R. Civ. P. 43(a). And at the pretrial conference, the Court emphasized it 15 “need[ed] . . . proof that he’s made every effort to be here.” (Dkt. No. 515 at 63.) But instead, 16 Mr. Grigorishin waited a full month after the pretrial conference to submit his visa application. 17 And, Mr. Grigorishin’s decision to wait to even apply for a visa until after ISL asked the Court 18 requesting CBP grant him temporary admission was unreasonable given there is no authority to 19 support the Court make such a request in a civil case, let alone under the circumstances of this 20 case. 21 As ISL has not shown good cause in compelling circumstances, the Court DENIES ISL’s 22 request to allow Mr. Grigorishin’s live video testimony. The parties may rely on his deposition 23 testimony. Given Mr. Grigorishin’s situation, the parties were on notice his deposition might be 24 the only avenue through which his testimony could be presented at trial. 25 II. MOTION REGARDING EVIDENCE OR ARGUMENT CONCERNING THIS LITIGATION AS A SUPERSEDING CAUSE 26 ISL also moves to “preclude evidence or argument, including during the examinations or 27 cross-examinations of witnesses, that the filing of the instant lawsuit and resulting effect on 1 sponsors constituted an alternative or superseding cause of ISL’s damages.” (Dkt. No. 532 at 2.) 2 World Aquatics opposes ISL’s request and states it “intends to put on evidence from which the 3 jury could conclude that the litigation was a part of a public relations strategy rather than the 4 necessary result of World Aquatic’s conduct,” as well as “a significant, independent factor 5 depressing sponsor interest in the nascent ISL property.” (Dkt. No. 535 at 4.) 6 “Causation is an intensely factual question that should typically be resolved by a jury.” 7 Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1168 (9th Cir. 2013) 8 (citation omitted). ISL cites no evidentiary rule or case law explaining why the Court may prevent 9 the jury from hearing evidence and argument related to causation of damages. Cf. id. at 1170 10 (reversing summary judgment and noting “the press coverage from third-party sources was a 11 foreseeable result of the enactment and enforcement of the Ordinance, and therefore a jury could 12 find that it was proximately caused by the [defendant]”). 13 Instead, ISL states to prove causation, it must show World Aquatics’ violation was a 14 “material cause, . . . notwithstanding that other factors also contributed,” see In re Airport Car 15 Rental Antitrust Litig., 474 F. Supp. 1072, 1099 (N.D. Cal. 1979) (quotation marks and citations 16 omitted), and ISL’s lawsuit would be a superseding cause only if it is “a later cause of independent 17 origin that was not foreseeable,” Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1081 (9th Cir. 18 2018) (quotation marks and citation omitted). And, ISL explains, in assessing damages, “the 19 relevant question i[s] the counterfactual ‘but-for’ analysis,” not a comparison to “real-world” 20 alternatives. In re Qualcomm Antitrust Litig., 328 F.R.D. 280, 307 (N.D. Cal. 2018), vacated and 21 remanded on other grounds sub nom., Stromberg v. Qualcomm Inc., 14 F.4th 1059 (9th Cir. 22 2021). The jury may find World Aquatics’ conduct was a material cause of ISL’s injury 23 notwithstanding other contributory factors. It may also find ISL’s lawsuit was a foreseeable 24 consequence of Defendant’s conduct and therefore not a superseding cause. But that does not 25 justify the Court’s preventing the jury from considering evidence and argument relevant to making 26 those determinations. 27 ISL also cites the Court’s order refusing to exclude ISL’s damages expert Dr. Jensen on 1 subsequent years is unreliable because even after its 2019 events, ISL did not garner large 2 || revenues.” (Dkt. No. 514 at 5.) There, the Court explained World Aquatics’ “argument is flawed 3 || because ‘the relevant question [is] the counterfactual “but-for” analysis,’ not a comparison to 4 ‘real-world’ alternatives.” (Cd. (citation omitted).) It is unclear how this statement supports ISL’s 5 present request. Ultimately, ISL’s lawsuit might have encouraged or discouraged sponsors—and 6 || therefore mitigated or increased ISL’s lost revenues and damages, and the parties are free to 7 present a factual foundation and make such arguments to the jury. (/d. at 8 (“[P]otential 8 || alternative causes for ISL’s lost revenues may be a fruitful ground for World Aquatics to present a 9 factual foundation and cross-examine Dr. Jensen at trial.’’).) 10 Finally, ISL contends evidence and argument related to its litigation might “open the door” 11 for ISL to explain how ISL’s lawsuit related to the swimmers’ class action, but the parties have 12 || stipulated to not presenting evidence or argument regarding “[t]he Class settlement in the Shields 13 case.” (Dkt. No. 532 at 6; Dkt. No. 490 at 16.) ISL can explain the Shields class action without 14 || presenting evidence or argument regarding its settlement. Furthermore, World Aquatics points out 15 “ISL has already designated exhibits and deposition testimony that speak to that effect.” (Dkt. No. a 16 535 at 7.) To the extent ISL seeks to present additional evidence or argument regarding the 3 17 Shields class action, the parties shall work together on how it may be presented to the jury. 18 So, the Court DENIES ISL’s motion to preclude evidence or argument this lawsuit 19 || contributed to ISL’s damages. 20 This Order disposes of Docket Nos. 531 and 532. 22 Dated: January 8, 2026 23 24 eppstisSuttCody ACQUELINE SCOTT CORLE 25 United States District Judge 26 27 28