Litigation in the Time of COVID-19

by Adya Baker on March 24, 2020

COVID-19 Litigation Video Conference

Just as the global health crisis is significantly altering our day-to-day lives, it is altering the nature and practice of litigation. Courts are closing their doors and limiting their dockets. Clients, firms and vendors have been forced to move their operations online or otherwise modify their services. And everyone is re-evaluating how to dedicate what are likely more limited resources. These changes will likely impact the procedural and strategic decisions you will have to make about your cases, including whether and how best to move them forward.

Some procedural topics you should consider are:

Courts: Many courts have published guidance on how they are dealing with deadlines and in-person appearances. For additional information, check both the court website and some of the compiled guidance found here and here. Of particular note:
- The U.S. Supreme Court postponed oral arguments scheduled for the March session, but did not automatically extend filing deadlines under Rule 30.1. The Court did invite parties to request more time where warranted.
- The Ninth Circuit postponed the March en banc oral arguments. The other oral arguments scheduled in March, April and May are being evaluated on a case-by-case basis.
- The Northern District of California has continued all jury trials scheduled to begin before May 1, and has directed all civil matters be decided on the papers, unless the assigned judge deems a telephonic or video hearing necessary.
- The Southern District of New York has continued all jury trials scheduled to begin before April 27, and left it up to the presiding judge to determine compliance with all other trial-specific deadlines in civil and criminal cases scheduled to begin before April 27.
- The District Court for the District of Columbia continued all trials scheduled to begin before May 11, and all other civil, criminal and bankruptcy proceedings scheduled to occur between March 17 and April 17.
- The Eastern District of Virginia continued all civil jury matters to a future date and postponed all in-court civil proceedings for two weeks, except for critical and emergency matters.

Depositions: Do you have depositions scheduled or that need to be scheduled? Consider whether defending or taking a deposition remotely (via video conference) is feasible or even advantageous. You’ll need to confirm that your court reporter is available to record the deposition remotely. Also consider whether you or your client will be at a strategic disadvantage by using video. Note you will likely have to coordinate the exchange of documents electronically and may have to provide documents to the other side before the deposition. If you are defending a deposition, how will you prepare your witness? If you do not want to take or defend depositions remotely, is that grounds for extending the schedule?

Mediations/ADR: Do you have a mediation or ADR scheduled? Similar to depositions, you should contact your mediator to inquire about video-conferencing options but also consider the strategic implications of moving forward with a mediation in this fashion. And if you do move forward, that may change how you want to structure the mediation Are presentations of the strengths of your case more or less helpful when the parties are not in the same room? Can the mediator effectively “go back and forth” between the parties remotely? Also note that if the court has ordered you to engage in ADR, you will likely need to seek leave to extend the deadline for completing this process.

Discovery: Although most document review and production is conducted electronically, e-discovery vendors may have to adjust their internal procures around production and contract attorneys for document review. It may also be more difficult to access hard copy documents or files maintained on your client’s servers. Contact opposing counsel as soon as possible to discuss upcoming discovery deadlines and consider whether extending the fact discovery deadlines may be appropriate.

Now may also be a time to consider longer-term strategic options:

Settlement Strategy: Parties are often reluctant to raise settlement if it is not tied to a particular case milestone like class certification or summary judgment. But standard worries about appearing to eager or ceding the upper hand are less of a concern now that all parties recognize that we are entering unchartered territory, from both a litigation and business perspective. Opposing counsel may be reevaluating how to allocate their more limited resources in this new environment. Raising settlement now, before addressing these complicate issues, may be an appealing option for cases in their early stages where neither party has invested a lot in the case yet.

Case Building: Alternatively, a potential “pause” in cases may create an opportunity for case building. With deadlines getting adjourned, parties may have more time to focus on proactive work such as creating orders of proof and trial plans, or preparing for key depositions that will occur once travel restrictions cease. This may be less of an appealing option for companies looking to reduce their legal spend in these uncertain times but may pay dividends later for those able to make the investment now.

It is unclear for how long the current crisis will last, and what the long-term impacts will be. Ultimately, staying flexible and thinking long-term is essential as you move forward with the day-to-day of active litigation.