With courts adopting varied approaches to COVID-19, parties need to remain mindful of pending deadlines and monitor each court independently. While remote technology might provide good alternate solutions to traditionally in-person discovery and courtroom procedures, it is important to document challenges complying with those deadlines as some courts might not be as sympathetic as others when extensions are sought.
The outbreak of the novel coronavirus (COVID-19) has created substantial disruption and uncertainty with respect to civil litigation management. Federal and state courts have responded in a variety of ways, with some extending deadlines and others taking a case-by-case approach.
Social Distancing in the Courtroom
Courts across the country are temporarily shutting their doors or limiting proceedings to aid the country’s social distancing efforts, although court policies are changing day by day. For example:
- United States Supreme Court: For the first time since the Spanish Flu pandemic, the Supreme Court has cancelled oral arguments for the next two weeks. It also has closed its building to the public until further notice. The Court has not extended case filing deadlines.
- United States Courts of Appeals:
- First Circuit: cancelled all arguments scheduled for April 6–9, 2020.
- Second Circuit: arguments remain on the calendar, but judges and persons scheduled to argue who wish to appear remotely may do so through a teleconference platform. Only individuals with business with the court may enter, and arguments will be live streamed to facilitate public access.
- Third Circuit: arguments will continue as planned, but parties may request to appear by audio conference. Except for filings conferring jurisdiction, any document received within three days of its current deadline will be deemed timely filed.
- Fourth Circuit: arguments during the March 17–20, and April 7, 2020 sessions will be heard later, either by teleconference or video conference, or decided on the briefs, at the discretion of the assigned panels.
- Ninth Circuit: arguments scheduled in March, April, and May 2020 will be evaluated on a case-by-case basis where the panels will have discretion to hear a case by videoconference or teleconference, postpone to a later date, or decide on the briefs. Arguments will be live streamed to facilitate access, and any non-jurisdictional filing dates will be extended as needed.
- United States District Courts:
- Northern District of California: no jury trials before May 1, 2020, and any necessary hearings during this period will be by telephone or video conference.
- District of Columbia: jury trials scheduled to commence between March 17 and May 11, 2020 postponed, and all proceedings scheduled between March 17 and April 17, 2020 also postponed. Presiding judges may enter orders to hold particular proceedings by teleconference, videoconference, or in person.
- Northern District of Illinois: all deadlines, other than for appeal, extended by 21 days, and civil hearings, trials, and settlement conferences scheduled from March 17, 2020 until April 3, 2020 have been stricken from the calendar, to be re-set by the presiding judge on or after April 6, 2020.
- Southern District of New York: civil jury trials scheduled to begin before April 27, 2020 postponed. Although judges have been urged to conduct court proceedings by telephone or videoconference, judges may continue to hold in-person proceedings at their discretion. The court has suspended personal service of process.
- Eastern District of Pennsylvania: trials scheduled to begin between March 13 and April 13, 2020 postponed. Initial case filings, which must usually be filed in hard copy, may be filed electronically until April 13, 2020.
- Eastern District of Texas: jury trials scheduled to begin between March 1 and May 1, 2020, postponed, but all pending deadlines other than the trial date remain in effect.
California: During a state of emergency, Presiding Judges of County Superior Courts may petition the Chief Justice for an emergency order to support their local needs. Numerous such petitions have been approved. In Los Angeles County, for example, all courtrooms will be closed from March 20, 2020 until April 16, 2020, except to perform a defined list of essential functions. The court has postponed civil trials and most civil hearings and it has extended many other deadlines.
New York: postponing all nonessential services. New civil trials are suspended as of March 16, though already ongoing trials will be permitted to conclude. At the appellate level, all Departments announced that there will be no in-person oral arguments for the March/April 2020 term. Appeals will be decided based on written submissions. The First and Second Departments may allow arguments to be made via Skype. The Third Department has instructed attorneys who do not wish to file a written submission to request a new date on the calendar.
- Pennsylvania: The Supreme Court has ordered the closure of all state courts beginning at the end of the day Thursday, March 19, 2020 and lasting through at least April 3, 2020. Exceptions will be made only for ongoing trials and essential court functions. All time calculations and deadlines are suspended through April 3, 2020.
The situation is fluid, and for the most up-to-date information, consult courts' websites.
In proceedings before courts that have not extended deadlines, counsel will need to request extensions to accommodate delays and be able to respond nimbly in the event courts are intent on moving forward.
We are beginning to see requests for extensions not only for briefing deadlines, but for discovery deadlines as well. For example, on March 16, 2020, in In re Foreign Bank Exchange Benchmark Rates Antitrust Litigation, 1:13-cv-7789 (S.D.N.Y.), both parties jointly requested for a nine-week discovery extension given the threat to public health posed by the well-attended depositions and the need for domestic and international air travel in the course of discovery. Judge Schofield granted the request on March 17, 2020.
Not all courts are showing a willingness to slow down in response to COVID-19. On March 17, 2020, in response to the District of Massachusetts’s automatic 60-day extension of criminal pretrial deadlines, Judge Gorton sua sponte ordered that the Varsity Blues pre-trial deadlines would continue to apply. United States v. Sidoo, 1:19-cr-10080-NMG (D. Mass.).
The best tool for securing necessary extensions will be to document the specific obstacles caused by COVID-19, especially where those obstacles are unique to your business or conflict.
Remote Case Management
We are already witnessing a willingness to adapt traditionally in-person proceedings and processes to a remote setting. A sick juror in the Southern District of New York was permitted to deliberate via videoconference. Courts generally are open to permitting appearances via videoconference or telephone as technology allows, even in some criminal contexts. Vendors have started promoting access to remote deposition video assistance products.
But even with technology, social distancing will pose significant challenges. For example,
- Taking depositions by video or telephonically is a viable option, but preparing witnesses and defending them remotely may be difficult.
- Gathering hard copies of documents in offices in response to document requests will be impossible, but downloading and reviewing electronically stored information may still be an option in many cases.
- Courts can schedule telephonic hearings for routine matters, such as scheduling conferences, but contested motions may be more difficult to do by phone.