COVID-19: Update on Managing Civil Litigation During Coronavirus Shutdown

Key Takeaways

Though many courthouses have now effectively closed, case deadlines largely continue to be in effect, and many judges are ploughing forward using remote work options. It is therefore important to document any obstacles hindering your ability to comply with current deadlines, and to be flexible and patient in responding to the challenges caused by COVID-19.

As we previously observed, the outbreak of the novel coronavirus (COVID-19) has created substantial disruption and uncertainty with respect to civil litigation management. Since we last reported on March 19, 2020, federal and state courts have continued to respond in disparate ways.

Social Distancing in the Courtroom

Courts across the country have continued issuing policies severely limiting the physical aspects of litigation to aid social distancing efforts, although court policies are changing day by day. As of the time of publication:

• United States Supreme Court: March and April oral arguments will be rescheduled before the end of the term pending public health circumstances, and the Court will consider a range of scheduling options and alternatives if arguments cannot be held in person.
  
  
• United States Courts of Appeals: The appellate courts have taken varied approaches:
  
  
  • First Circuit: cancelling arguments scheduled for April 6–9; granting a 30-day extension for any non-emergency filing due to be filed between March 26 and April 24 for any case that is not presently calendared for oral argument, has not been argued before a panel, or is otherwise not expedited, so long as the deadline is not jurisdictional.
    
    
  • Second Circuit: conducting oral arguments by teleconference effective March 23; regularly argued appeals and motions will continue to be heard as scheduled; the previously ordered extension extended deadlines that were originally scheduled between March 16 and May 17 by 21 days, but the court does not expect to issue additional extensions.
    
    
  • Third Circuit: remaining open and operational during the COVID-19 pandemic and conducting remote operations during this time; arguments will continue as planned, but parties may request to appear by audio conference; extending filing deadlines by three days except for jurisdictional filings.
    
    
  • Fourth Circuit: postponing arguments during the May 5–8 sessions to be heard later, either by teleconference or video conference, or decided on the briefs, at the discretion of the assigned panels.
    
    
  • Fifth Circuit: cancelling oral arguments for the March 30–April 2 and April 27–30 sessions.
    
    
  • Sixth Circuit: postponing oral arguments scheduled for the March 17–20 session, unless otherwise ordered.
    
    
  • Seventh Circuit: conducting arguments scheduled from March 30 through the end of April by telephone; closing courthouse to the public, but posting oral arguments to the Court’s website.
    
    
  • Eighth Circuit: remaining open for business.
    
    
  • Ninth Circuit: evaluating cases on a case-by-case basis for arguments scheduled between March and May; panels will have discretion to either hear a case by videoconference or teleconference, postpone to a later date, or decide on the briefs; live-streaming arguments for public access; granting automatic 60-day extension to any party who requests an extension citing COVID-19, unless the case has previously been expedited or the case has already been assigned to a panel.
    
    
  • Tenth Circuit: assessing arguments scheduled for April and May; these cases will be either argued telephonically, submitted on the briefs, or rescheduled for in-person arguments; closing courthouse to the public.
    
    
  • Eleventh Circuit: authorizing panels to hear oral arguments by audio or video conferencing; livestreaming arguments not made in public courtroom when feasible, and in all cases, making audio recordings available to the public.
    
    
  • D.C. Circuit: suspending in-person oral arguments until further order of the court; each panel will determine whether the argument will proceed by teleconference, be postponed until a later date, or be decided without oral argument.
    
    
  • Federal Circuit: conducting arguments scheduled for April by teleconference; livestreaming and releasing same-day audio for all arguments.
    
    
• United States District Courts
  
  
  • Northern District of California: no jury trials before May 1; holding all necessary hearings prior to May 1 by telephone or video conference; consolidating and relocating all proceedings to the San Francisco Courthouse until May 1; closing all other courthouses until May 1.
    
    
  • District of Columbia: postponing jury trials scheduled to commence before June 11 and proceedings scheduled before June 1, though presiding judges may enter orders to hold particular proceedings by teleconference, videoconference, or in person before June 1.
    
    
  • Northern District of Illinois: extending deadlines, other than for appeal, by an additional 28 days from its initial general order, for a total of 49 days; striking from the calendar civil case hearings, bench trials, and settlement conferences scheduled on or before May 1 to be re-set by the presiding judge on or after May 4; striking civil jury trials scheduled for on or before May 29 to be rescheduled by the presiding judge to a date on or after June 1.
    
    
  • District of New Jersey: extending all filing and discovery deadlines between March 25 and April 30 by 45 days, unless otherwise directed by the presiding judge.
    
    
  • Southern District of New York: postponing civil jury trials scheduled to begin before June 1; civil case operations will proceed at the discretion of the presiding judge; limiting in-court appearances strictly to emergency matters, and conducting proceedings telephonically or by videoconference; suspending personal service of process.
    
    
  • Eastern District of Pennsylvania: postponing trials scheduled to begin between March 13 and April 13; permitting electronic submission of initial case filings until April 13.
    
    
  • Eastern District of Texas: postponing jury trials scheduled to begin between March 1 and May 1.
    
    
• State Courts:
  
  
  • California: continuing trial dates 60 days from the start of the previously scheduled trial dates; judges of County Superior Courts may petition the Chief Justice for an emergency order to support their local needs.
    
    
  • New York: suspending civil trials; tolling the statute of limitations until April 19; mandating that no paper or electronic filings will be accepted except those deemed essential per judicial order or by the presiding judge; appellate departments cancelling in-person oral arguments for the March/April term, and appeals may be decided based on written submissions; the First and Second Departments may allow arguments to be made via Skype, and attorneys appearing before the Third Department who do not wish to have their appeal decided on their written submissions may request a new date on the calendar.
    
    
  • Pennsylvania: extending the general, statewide judiciary emergency through April 30, which provides each district with authority to adopt measures to safeguard the health and safety of court personnel and members of the public; using this authority, the First Judicial District, which includes Philadelphia, closed effective March 17 with limited exceptions made for certain criminal and other urgent proceedings; in all courts, any papers or pleadings required to be filed between March 19 and April 30 shall be deemed to have been timely filed if they are filed by May 1, or later as permitted.

The situation is fluid, and for the most up-to-date information, consult courts’ websites.

Case-By-Case Approach

Even though many courts have automatically extended certain deadlines or even statute of limitations periods, in nearly all cases, individual judges retain discretion to override or expand those decisions for cases on their own calendar. For example, it is wise to pay particular attention to whether an individual judge has suspended requirements for sending courtesy copies to chambers.

Anecdotal evidence supports that some courts are probing even joint extension requests, requiring the parties to establish that COVID-19 in fact justifies a delay. In such cases, the chances of securing extensions will be higher when the parties can document the specific obstacles they face, for example, the need for travel, physical evidence, or to involve medical personnel or others who are on the frontlines of the fight against COVID-19.

In some cases, judges are taking the initiative to identify when additional accommodations may be necessary. For example, in Sinceno v. Riverside Church, 2020 WL 1302052 (S.D.N.Y. March 18, 2020), Judge Liman sua sponte issued an order permitting all depositions to be conducted remotely. In Lipsey v. Walmart, Inc., 2020 WL 1322850 (N.D. Ill. March 20, 2020), the magistrate presiding over Lipsey, a personal injury case, became concerned that the District’s automatic 21-day extension was insufficient given that the discovery in the case would involve depositions of medical professionals who could be responding to COVID-19. Id. at *1. As a result, the court required parties to confer about whether depositions of medical personnel should proceed and imposed a protocol for such depositions that involved court oversight. Id. at *4.

Remote Case Management Issues

As expected, despite litigants’ and courts’ willingness to adapt traditionally in-person proceedings and processes to a remote setting, such adaptations are not without challenges. For example, though e-discovery practices superficially appear ripe for remote work, obstacles abound:

• Stay-at-home orders have limited, if not prohibited, the initial collection of responsive documents that require the physical access to devices or presence of personnel with knowledge about document storages.  
  
  
• Hosting vendors may face challenges in accepting, processing, and producing data if their business has been impacted by stay-at-home orders.
  
  
• Because remote work can be less secure, litigants must remain mindful of data security considerations.

Traditionally physical litigation events pose more obvious challenges. For example, though it is possible to conduct remote depositions, it is difficult to remotely develop rapport and a rhythm with the deponent and to use documents to question the witness.

Need For Flexibility And Empathy

Judges and lawyers across the country are making the case for empathetic and flexible responses to the new challenges in our COVID-19 reality. At this time of global upheaval, litigants are well advised to remember that judges, their staff, and opposing counsel may be juggling their own personal emergencies in addition to adapting to remote work.

Some courts have chastised litigants for aggressive posturing in this climate. In a more extreme case, Judge Seeger recently scolded a plaintiff for demanding an immediate hearing on its request for a temporary restraining order regarding counterfeit unicorn drawings, writing: “If there’s ever a time when emergency motions should be limited to genuine emergencies, now’s the time.” Art Ask Agency v. Individuals, Corporations, Limited Liability Cos., Partnerships, and Unincorporated Associations Identified in Schedule A, No. 20-cv-1666, 2020 WL 1427085, *1-2 (N.D. Ill. March 18, 2020).

We would also like to thank James Kilduff, Law Clerk, for his contribution to this OnPoint.