We continue to track the impact of COVID-19 on court operations and parties in civil litigation across the country. (You can read our most recent update here.) Many courts seem to have shifted from the earlier pauses and are now focused on moving cases forward with as little delay as possible, utilizing videoconferencing and other technology to move cases along.
As outlined in our prior updates, and in this update by our colleagues, most filings are currently prohibited in New York state trial courts, but those courts are moving ahead with some appearances using Skype. Attorneys can now schedule a Skype test with court officials in advance of any appearance to make sure that the technology is working on the attorney’s end.[1] Similarly, New Jersey state courts are allowing court-sponsored civil arbitrations to proceed by videoconference.[2] Use of videoconferencing technology from home is creating some unique problems, however: for example, as was widely reported, a judge in Florida had to remind counsel to wear shirts during videoconferences![3]
Courts are attempting to move forward in other ways as well. The New York State Appellate Division, Fourth Department has announced that it is lifting a prior suspension of filing deadlines, and has created a new June term to hear appeals that were originally scheduled to be heard in May.[4] Other appellate courts in New York could soon follow suit. Courts also continue to approve taking depositions by remote means. In California, a federal district court entered a detailed protocol for taking a single deposition remotely, and stated that if the “initial remote deposition goes smoothly,” the court may “enter a similar order governing the remaining depositions to be taken in the case.”[5]
Not every court is permitting remote depositions, however. A federal court in New Mexico refused to grant plaintiff’s request to allow depositions to proceed using remote means, finding that “the complexity of the case, the need to present documents, the probable length of the deponents’ testimony, the possibility of technological difficulties, and the difficulty of preparing witnesses remotely” weighed against remote depositions in that action.[6] Instead, the court extended the deposition deadline to August 3, 2020.[7]
Some courts are reticent to stay or extend cases despite the pandemic. A federal court in Maryland refused to grant a stay pending the outcome of a related appeal in the U.S. Supreme Court, holding that “as a result of the current COVID-19 pandemic, and the concomitant disruption to the court system, the Supreme Court’s usual timeline may be substantially delayed,” such that, if granted, “a stay could be in place for more than a full year.”[8] A federal court in Washington held that the parties failed to justify their joint request for an extension of case deadlines because they did not provide “specifics concerning any discovery that they have been unable to obtain due to circumstances surrounding the COVID-19 pandemic,” failed to explain “why they cannot conduct . . . depositions by telephone or other remote means,” and failed to show that the court is not “fully capable of resolving any discovery disputes” that arise.[9]
Similarly, a federal court in California denied a request to adjourn a mediation and case conference. Although the court stated that it “is acutely cognizant of the strain that the COVID-19 pandemic has brought upon society-at-large, especially upon litigants, their counsel, and the judiciary,” it refused to grant an open-ended extension “because we must capture the momentum and march forward as best we can.”[10] A federal court in New York refused to reopen discovery at plaintiff’s request, initially closed due to plaintiff’s failure to depose defendants, holding that although “any deposition noticed for late-February or March 2020 likely would not have taken place due to the COVID-19 pandemic . . . the pandemic is simply not an excuse for failing to diligently pursue discovery in [the] seven months prior.”[11] A judge in New York state court summed up this focus on moving ahead despite the pandemic, remarking that “[w]hile it is unfortunate that the courts and the nation are suffering from a slow down due to the Corona Virus situation, the time can be spent rectifying some . . . discovery issues.”[12]
But other courts are still refusing to take certain actions in light of the ongoing pandemic, or are otherwise factoring the pandemic into their decisions. A federal court in Michigan refused to award a defendant costs associated with bringing a motion to compel a response to discovery requests. The court explained that “costs are not appropriate here in light of the practical realities arising from the coronavirus outbreak and state of emergency declarations at both the state and national levels.”[13] A federal court in Utah extended the deadline for a motion for class certification, over defendant’s objection, holding that the applicable rule “allows the court to account for certain circumstances such as delay, or hopefully only once in every hundred-year pandemic such as COVID-19.”[14]
A federal court in Texas, responding to a motion for a preliminary injunction, held that the “parties to this litigation [must] recognize” the difficulties posed by the pandemic, and must “cooperate fully to lessen the inconvenience caused by the COVID-19 pandemic. Simply, it is not ‘business as usual’ in this court, and the parties shall recognize this.”[15] The court directed the parties to come up with a briefing schedule and the ground rules for conducting a hearing on the request for preliminary injunction.[16] A federal court in Virginia factored the pandemic into its analysis of the balance of the hardships and public interest in a preliminary injunction analysis, holding that the pandemic did not alter the analysis in that case because “both parties face many challenges,” and the defendant’s business activities had not been significantly impacted by the pandemic.[17]
In sum, courts are becoming more and more hesitant to delay proceedings due to the pandemic, but some courts are still granting extensions or otherwise refusing to go forward with “business as usual,” modifying orders and timelines but still trying to move the cases along. Parties seeking an adjournment should be prepared to demonstrate specific impacts the COVID-19 pandemic has had upon their abilities to litigate, rather than merely referring to general burdens created by the outbreak. Parties should also consider remote means available for the conduct of both court appearances and depositions.
[1] https://www.nycourts.gov/LegacyPDFS/courts/5jd/Joining-Skype-ForBusiness-QA.pdf.
[2] https://njcourts.gov/notices/2020/n200417a.pdf?c=Py5.
[3] E.g., https://www.law360.com/articles/1263646/put-on-a-shirt-for-video-hearings-judge-tells-attys.
[4]https://ad4.nycourts.gov/press/Notices/5e9a219b33fc538828087b9e/Order%20Lifting%20Suspension%20of%20Deadlines.pdf.
[5] 2020 U.S. Dist. LEXIS 64352 (S.D. Cal. Apr. 13, 2020).
[6] 2020 U.S. Dist. LEXIS 63710 (D.N.M. Apr. 10, 2020).
[7] Id.
[8] 2020 U.S. Dist. LEXIS 66217 (D. Md. Apr. 15, 2020).
[9] 2020 U.S. Dist. LEXIS 64494 (W.D. Wash. Apr. 13, 2020).
[10] 2020 U.S. Dist. LEXIS 64284 (S.D. Cal. Apr. 9, 2020).
[11] 2020 U.S. Dist. LEXIS 66738 (S.D.N.Y. Apr. 15, 2020).
[12] 2020 N.Y. Misc. LEXIS 1432 (N.Y. Sup. Ct. Apr. 9, 2020).
[13] 2020 U.S. Dist. LEXIS 64058 (E.D. Mich. Apr. 13, 2020)
[14] 2020 U.S. Dist. LEXIS 68211 (D. Ut. Apr. 16, 2020).
[15] 2020 U.S. Dist. LEXIS 63595 (W.D. Tx. Apr. 8, 2020).
[16] Id.
[17] 2020 U.S. Dist. LEXIS 64450 (E.D. Va. Apr. 10, 2020).
