Continuing Impacts of the COVID-19 Pandemic on Discovery and Civil Litigation

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In the wake of the ongoing COVID-19 pandemic, courts and parties across the United States are scrambling to figure how, or even if, to move civil litigation forward in pending matters given the current circumstances. As discussed in our prior update of March 20, 2020, (which you can read here), federal and state courts continue to take varying approaches in managing ongoing civil litigation, including now restricting the types of filings and hearings allowed, and by delaying discovery. Courts are providing additional guidance as the pandemic continues to unfold.

The pandemic is affecting every aspect of civil litigation, with hearings and even civil jury trials being conducted, in whole or in part, via videoconference technology.[1] Some courts are also restricting the types of filings or hearings permitted in civil cases. On March 22, 2020, after New York’s governor suspended the state’s statutes of limitations and certain other filing deadlines, New York state courts took the dramatic step of restricting all electronic and hard copy court filings, other than certain specified “essential” filings, such as protective orders, emergency applications relating to the COVID-19 pandemic, and emergency election-related applications.[2] Although the full impact of this order remains to be seen, the order appears to limit the ability of litigants in New York state courts to file motions to dismiss, motions for summary judgment, discovery motions, and other “routine” motions in civil litigation.

Other courts are trying to discourage what may be viewed as “unnecessary” filings and hearings, under current circumstances, on a case-by-case basis. In a trademark infringement case where the court denied plaintiff’s request for a temporary restraining order, the plaintiff moved for reconsideration and made an emergency motion for a hearing. The emergency judge overseeing the motion rejected that request in a sharply-worded decision, holding that “[t]he world is facing a real emergency. Plaintiff is not.”[3] It may only be a matter of time before similar rulings are seen from other courts.

With respect to discovery in civil litigation, courts are continuing to authorize depositions by telephone or video.[4] Courts are also extending discovery schedules in light of “travel restrictions” and “shelter-in-place” orders impacting counsel and witnesses.[5] 

The United States District Court for the Northern District of Illinois is continuing to provide guidance on depositions of medical professionals, given the demands placed on many of those professionals by the pandemic. In a decision entered on Friday, March 20, 2020, the court held that because Federal Rule of Civil Procedure 26(b)(1) requires that discovery be “proportional to the needs of the case,” accounting for “the burden and expense of the proposed discovery,” the court had the power to limit depositions of medical professionals in light of the ongoing pandemic.[6] The court summarized efforts by other courts to limit discovery and other civil proceedings and also summarized a “public record replete with references to the impact that community spread of COVID-19 could have, and is already having, on medical care providers, doctors, hospitals and staff.”[7] Given the circumstances, the court entered an order—consistent with an order entered by the court in another case earlier in the week (which we wrote about here)—requiring the litigants to submit a report to the court before deposing any medical professionals, explaining why the testimony is needed and what role, if any, the professional has in combating the pandemic.[8]

The conduct of discovery and other aspects of civil litigation will continue to change and evolve as courts react to the ongoing pandemic and its effects. Litigants should pay close attention both to orders issued by the specific judges overseeing their case, but also to general orders affecting all courts in that jurisdiction, which may, like the order issued by New York state courts, restrict certain filings or types of hearings. Litigants thinking of filing a new civil action, or making motions and conducting discovery in an ongoing case, should also take heed of the fact that, absent a true emergency, their cases are unlikely to move forward quickly in the current climate and that courts may react negatively to requests for non-essential “emergency” relief.

 

[1] 2020 U.S. Dist. LEXIS 47350 (D. Neb. Mar. 12, 2020) (evidentiary hearing to be conducted via videoconference); 2020 WL 1280931 (D. Minn. Mar. 13, 2020) (witnesses in civil jury trial can appear via videoconference).

[2] https://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.

[3] Case No. 1:20-cv-01666 (N.D. Ill.), quoted in 2020 U.S. Dist. LEXIS 48353, at *4-5 (N.D. Ill. Mar. 20, 2020).

[4] E.g., 2020 WL 1302053 (S.D.N.Y. Mar. 18, 2020).

[5] E.g., Case No. 3:15-md-2672, Dkt. No. 7311 (N.D. Cal. Mar. 19, 2020); Case No. 19-cv-27, Dkt. Nos. 80-81 (E.D. Tx. Mar. 19, 2020)

[6] 20202 U.S. Dist. LEXIS 48353, at *3 (quoting Fed. R. Civ. P. 26(b)(1)).

[7] Id. at *4-7.

[8] Id. at *8-11.