Unreported / Non-Citable
Background
The International Swimming League, LTD (ISL) sued World Aquatics, the international governing body for competitive swimming, in the Northern District of California in 2018, alleging anticompetitive conduct that damaged ISL’s ability to operate its professional swimming league. The case has been pending for years and is on the eve of jury trial. ISL’s founder, primary funder, and key witness Konstantin Grigorishin had his U.S. visa revoked in 2016 — two years before ISL filed suit — and had been denied a fresh visa in 2019.
Months before trial, ISL asked the court to allow Grigorishin to testify remotely under Federal Rule of Civil Procedure 43(a). At the November 2025 pretrial conference, the court signaled it would consider remote testimony if Grigorishin could show he had pursued and been denied a visa. Grigorishin applied for a B-1/B-2 visa on December 18, 2025, was interviewed at the U.S. Embassy in Switzerland on December 30, 2025, and was told the application required “administrative processing” and submission of a Form DS-5535 with additional information. As of January 6, 2026 — days before trial — he had not received a visa, his immigration counsel said the embassy was unlikely to issue a final determination for months or years, and a request for CBP parole was pending.
ISL also asked the court to bar World Aquatics from arguing that the lawsuit itself caused or contributed to ISL’s damages by chilling sponsorship interest.
The Court’s Holding
Magistrate Judge Jacqueline Scott Corley denied both requests.
On Rule 43(a), the court found ISL had not shown “good cause in compelling circumstances” to permit remote testimony, citing the Ninth Circuit’s 2023 decision in In re Kirkland and the rule’s 1996 advisory committee note. The decisive point was foreseeability: ISL chose to file in the United States in 2018, when its founder’s visa had already been revoked for two years, and Grigorishin’s 2019 visa application had already been denied. ISL therefore reasonably should have foreseen the circumstances now invoked to justify remote testimony, which under Kirkland creates “special difficulty in showing good cause and the compelling nature of the circumstances.” The court contrasted out-of-circuit cases like Virtual Architecture v. Rick and In re Rand International, where the international-travel difficulties were less foreseeable. The fact that the deposition had been conducted remotely also did not change the analysis at trial.
On the in limine request to preclude lawsuit-as-superseding-cause evidence, the court denied the motion. ISL had not explained why the court could prevent the jury from considering evidence relevant to causation of damages. Sponsors’ reactions to the lawsuit are facts that may bear on whether World Aquatics’ alleged conduct was the proximate cause of ISL’s damages, and the appropriate response is jury argument and instructions, not exclusion. The court left the door open to refining the issue with focused objections at trial.
Key Takeaways
- Rule 43(a) remote-testimony requests in the Ninth Circuit face an uphill battle when the witness’s unavailability was reasonably foreseeable when the lawsuit was filed. In re Kirkland imposes “special difficulty” on the moving party in those circumstances.
- A litigant who knows its key witness cannot enter the United States and chooses to file in U.S. district court anyway should expect the court to insist on live in-person testimony at trial absent extraordinary new circumstances.
- Even with diligent late-stage visa efforts and a pending CBP parole request, the court will not retroactively cure foreseeability problems that have existed since the case was filed.
- Litigants generally cannot use motions in limine to prevent juries from considering evidence relevant to causation of damages — including the chilling effect of the lawsuit itself on third-party relationships. That is jury-argument territory.
Why It Matters
The ISL v. World Aquatics case is one of the most-watched antitrust cases in international sports governance. The court’s eve-of-trial rulings will shape both how the trial proceeds and the broader landscape of antitrust litigation against international federations. Denying remote testimony for ISL’s founder may significantly weaken ISL’s case, since Grigorishin’s presence and credibility are central to the narrative about why he created ISL and how World Aquatics responded.
The opinion is also a useful precedent for plaintiffs and defendants in foreign-witness situations. The Ninth Circuit’s emphasis on foreseeability under In re Kirkland means that international witnesses with known immigration issues should be deposed for trial purposes, lined up for live testimony where possible, or made the basis for an alternative forum choice — not relied on for late-breaking remote-testimony requests when the visa system fails to cooperate.