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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
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BLUE FLAME MEDICAL LLC
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Plaintiff,
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v.
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Civil Action No. 1:20-cv-00658
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CHAIN BRIDGE BANK, N.A.,
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The Honorable Leonie Brinkema
JOHN J. BROUGH, and
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DAVID M. EVINGER,
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Defendants.
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CHAIN BRIDGE BANK, N.A.
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Third-Party Plaintiff,
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v.
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JPMORGAN CHASE BANK, N.A.
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Third-Party Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S
MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITIES
Plaintiff Blue Flame Medical LLC (“Plaintiff”) respectfully submits this memorandum of
law in support of its motion, pursuant to Local Civil Rule 7(F)(1), for leave to file supplemental
authorities in connection with the Court’s consideration of Blue Flame Medical’s Motion for
Partial Summary Judgment (ECF No. 127) and Defendants Chain Bridge Bank, N.A., John J.
Brough, and David M. Evinger’s (“Defendants”) Motion for Summary Judgment (ECF No. 118).
Specifically, Plaintiff seeks leave following the July 28, 2021 hearing regarding the parties’
summary judgment motions (the “Hearing”) to identify authorities supporting the Court’s
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consideration of the Declaration of Henry Huang (ECF No. 150-11) (the “Huang Declaration”).
Huang is not a party to this action and is the Chief Executive Officer of Great Health Companion
Group (“GHC”), Plaintiff’s primary supplier for its sale of 100 million N95 masks to the State of
California, and has personal knowledge of GHC’s ability to supply those masks. Plaintiff
submitted the Huang Declaration as an exhibit to the Affirmation of Peter H. White in Opposition
to Defendants’ Motion for Summary Judgment (ECF No. 150), which was submitted in support of
Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (ECF No. 149).
Plaintiff’s submission of supplemental authorities supporting consideration of the Huang
Declaration is necessary in order to respond to certain arguments and representations Defendants
made regarding the Huang Declaration at the Hearing. Specifically, Defendants’ counsel argued
at the Hearing that considering the Huang Declaration in connection with the parties’ summary
judgment motions would be unfair because Defendants did not have an opportunity to depose
Huang and because Huang did not respond to Defendants’ purported document subpoenas, for
which Defendants did not attempt to make effective service.1 See Fed. R. Civ. P. 45(b)(3); 28
1 Defendants’ counsel also argued during the Hearing that the Huang Declaration should not be
considered because it is too conclusory and speculative. It is not. Huang explains how GHC
would have obtained the N95 masks for Blue Flame, including listing three manufacturers from
which GHC would have procured the masks (Huang Decl. at ¶ 22-23), indicating knowledge of
“the actual production lines” of those manufactures (id. at ¶ 32), noting that production capacity
was increasing in China by late March 2020 (id. at ¶ 25), and explaining that GHC would have
used a large purchasing commitment and advance payment to secure production capacity (see id.
at ¶¶ 18, 20, 24-26, 28-32, 38). See Redmond v. Yachting Sols., LLC, 435 F. Supp. 3d 257, 261
(D. Me. 2019) (admitting into evidence employees’ estimates of how much time it would take to
complete certain tasks performed in capacity as employee). Huang also lists examples of PPE that
GHC successfully provided to Blue Flame customers. Huang Decl. at ¶ 17. In contrast, the cases
identified in Defendants’ Reply (ECF No. 155) involved statements centered on opinion. See
Crouse v. Wal-Mart Stores East, Inc., No. 1:01CV00079, 2002 WL 1046714, at *4 (W.D. Va.
May 23, 2002) (emphasis added) (affidavit stating “I believe that Wal-Mart could have
accommodated [me]” was merely opinion statement); Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 962 (4th Cir. 1996) (striking certain statements in plaintiff’s own affidavit containing
“self-serving opinions” about her qualifications for a job and the abilities of her colleagues).
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U.S.C. § 1783 (governing service of a subpoena to a U.S. national who is in a foreign country).
As Plaintiff’s counsel noted during the Hearing and as Huang explains in his Declaration, Huang
could not comply with either Defendants’ or Plaintiff’s efforts to take his deposition because he
was (and remains) in China and therefore could not be deposed without violating Chinese law.
Huang Decl. at ¶¶ 10-11; see also Chen v. Hunan Manor Enter., No. 17 Civ. 802, 2020 U.S. Dist.
LEXIS 19452, at *3-4 (S.D.N.Y. Feb. 3, 2020) (“[T]he Court's review of relevant case law shows
that it is improper to order that a video deposition take place in China because such depositions
violate Chinese domestic law.”). Huang could not leave China to sit for a deposition, either, due
to China’s travel restrictions related to the COVID-19 pandemic, which remained too stringent for
him to travel internationally while performing his duties as CEO of GHC and Hakim Unique
Group. See Huang Decl. at ¶¶ 5, 10-12. In short, Defendants and Blue Flame both sought to
depose Huang given his role as a key witness in this litigation, and both were unsuccessful due to
Chinese law and the COVID-19 pandemic.
Defendants’ argument that the Huang Declaration should not be considered because Huang
has not been deposed—again, due to Chinese law and the extreme travel restrictions caused by the
pandemic—is inconsistent with several recent decisions that Plaintiff has identified since the
parties’ summary judgment motions were fully submitted. In particular, Plaintiff wishes to bring
three recent district court decisions to the Court’s attention that are relevant to these issues. These
decisions make clear that the theoretical possibility of international travel during the COVID-19
pandemic does not supply grounds to compel a witness residing abroad to travel to another country
for a deposition, and should not disqualify the declaration of such a witness offered in connection
with summary judgment motions. Plaintiff believes that consideration of these authorities may be
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helpful to the Court, particularly given the novel and practical challenges presented by the
pandemic for parties conducting discovery of non-party witnesses located abroad.
At least one federal court has considered similar declarations offered under similar
circumstances, where the witnesses were located in China and could not be deposed due to Chinese
law and COVID-19 travel restrictions. In Zhizheng Wang v. Hull, the court denied a motion to
strike multiple declarations submitted by Chinese declarants in support of the plaintiff’s summary
judgment motion. No. C18-1220, 2020 WL 3315990, at *4 (W.D. Wash. June 18,
2020), reconsideration denied, 2020 WL 8839776 (W.D. Wash. July 6, 2020). A copy of that
decision is attached hereto as Exhibit A. In a subsequent decision, the court noted that “[w]ith
regards to the current health crisis caused by the novel coronavirus, defendant is not demanding,
and the Court will not require, that plaintiff [one of the Chinese declarants] board a flight for
Seattle, Hong Kong, Macau, Seoul, or Taipei immediately” for purposes of a remote deposition.
Zhizheng Wang v. Hull, No. C18-1220, 2020 WL 4734930, at *2 (W.D. Wash. June 22, 2020).
Accordingly, the court stayed the case until the plaintiff could travel to another country to be
deposed. Id. A copy of that subsequent decision is attached hereto as Exhibit B.2
2 None of the cases cited in Defendants’ Reply address this situation, since they all involve
declarants who—unlike Huang—were controlled by a party, intentionally avoided formal service
of a subpoena, failed to appear at a scheduled deposition, or gave no indication they would testify
at trial. See Dedvukaj v. Equilon Enters., L.L.C., 301 F. Supp. 2d 664, 668 (E.D. Mich. 2004)
(officer of corporate plaintiff failed to appear at deposition scheduled by defendant and there was
“no indication he will be available for trial”); Henry v. Outback Steakhouse of Fla., LLC, No. 15-
cv-10755, 2017 WL 1382292, at *2 (E.D. Mich. Apr. 18, 2017) (party relying on affidavits “had
some control over” witnesses who failed to appear for scheduled depositions or evaded service);
McKellar v. State Farm Fire & Cas. Co., No. 14-cv-13730, 2016 WL 304759, at *8 (E.D. Mich.
Jan. 26, 2016) (declarant deliberately made himself unavailable and evaded service eight times,
then, after court-ordered alternative service, failed to appear); Cambridge Literary Props., Ltd. v.
W. Goebel Porzellanfabrik G.m.b.H. & Co. Kg., No. CV 00-10343, 2006 WL 8458370, at *1 (D.
Mass. Mar. 14, 2006) (foreign declarants resided abroad and were “unlikely to be available for
trial”); Bumpas v. Ryan, No. 3:07-cv-0766, 2013 WL 2418258, at *2 (M.D. Tenn. June 3, 2013)
(declarant failed to appear at noticed deposition and there was no indication he would be available
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Similarly, at least two district courts have refused to order witnesses residing abroad to sit
for a remote deposition prohibited by home-country law or travel internationally for a remote or
in-person deposition while pandemic-related travel restrictions remain in place. See Squires v.
Toyota Motor Corp., No. 4:18-CV-00138, 2021 WL 1837540, at *2-5 (E.D. Tex. May 7, 2021)
(where Japanese law required that depositions for use in U.S. court proceedings be taken in U.S.
consulate or embassy, which were closed due to COVID-19 pandemic, court refused to compel
Japanese non-party fact witnesses to travel internationally to sit for remote depositions, finding
that “[d]elaying the depositions of the specific Deponents while the pandemic is still rampant, and
escalating, is both prudent and necessary”); Jacobs v. Floorco Enters., LLC, No. 3:17-CV-90, 2020
WL 1290607, at *14-16 (W.D. Ky. Mar. 18, 2020) (noting that “a remote deposition appears
unlawful” in China, court granted motion to compel Chinese witness to appear for deposition in
U.S., but refused to impose deadline for such deposition in light of COVID-19 travel restrictions
and witness’s declaration that he was willing to be deposed but could not travel outside of China
at that time). Copies of those decisions are attached as Exhibits C and D hereto, respectively.
Squires and Jacobs suggest that it would have been inappropriate for the parties to insist that Huang
travel to another country in order to be deposed prior to the Court’s April 12, 2021 discovery
deadline (ECF No. 80), particularly given that the Federal Rules of Civil Procedure do not require
that a declarant be deposed in order for the Court to consider his declaration on summary
judgment.3
at trial); Lucas v. Jolin, No. 1:15-cv-108, 2016 WL 2853576, at *8-9 (S.D. Ohio May 16, 2016)
(declarant resided abroad and was unlikely to give testimony at a deposition or trial).
3 Rule 56 of the Federal Rules of Civil Procedure expressly contemplates the use of declarations
to support or oppose summary judgment motions. See Fed. R. Civ. P. 56(c); United States v. Rocky
Mt. Holdings, Inc., 782 F.Supp.2d 106, 114 (E.D. Pa. 2011) (rejecting argument to strike
declarations based on personal knowledge on the grounds that “Plaintiff’s submission of them in
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Given the undisputed relevance of the Huang Declaration to key issues in this case,
including Plaintiff’s proof of its damages—an issue the Court highlighted at the Hearing—
Plaintiff’s supplemental authorities may bear on the Court’s rulings on the parties’ competing
summary judgment motions. Accordingly, Plaintiff respectfully moves the Court for leave to
submit the above authorities for the Court’s consideration in adjudicating the parties’ motions for
summary judgment.
Dated : Washington, D.C.
August 3, 2021
Respectfully submitted,
/s/ Peter H. White
Peter H. White (VA Bar No. 32310)
Jason T. Mitchell (pro hac vice)
Gregory Ketcham-Colwill (pro hac vice)
SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005
Tel.: (202) 729-7476
Fax: (202) 730-4520
pete.white@srz.com
jason.mitchell@srz.com
gregory.ketcham-colwill@srz.com
William H. Gussman, Jr. (pro hac vice)
Steven R. Fisher (pro hac vice)
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
Tel.: (212) 756-2044
Fax: (212) 593-5955
bill.gussman@srz.com
steven.fisher@srz.com
Counsel for Plaintiff Blue Flame Medical LLC
lieu of [a deposition] was improper” because “[n]othing in the Federal Rules of Civil Procedure
requires Plaintiff to depose [declarant]”).
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CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of August, 2021, I caused the foregoing
document to be filed and served electronically using the Court’s CM/ECF system, which
automatically sent a notice of electronic filing to all counsel of record.
Dated: August 3, 2021
/s/ Peter H. White
Peter H. White, Esq. (VSB# 32310)
SCHULTE ROTH & ZABEL LLP
901 Fifteenth Street, NW, Suite 800
Washington, DC 20005
Tel: 202-729-7476
Fax: 202-730-4520
peter.white@srz.com
Counsel for Blue Flame Medical LLC
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