Courts Continue to Loosen COVID-19 Restrictions in Civil Litigation and to Push Civil Cases Forward

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.)  As the weeks under shelter or stay at home orders approach months, more courts are trying to resume closer to “normal” operations, while acknowledging in some cases that certain procedures are still not viable due to the ongoing pandemic. 

As discussed here, here, and here, New York state courts had temporarily restricted all “non-essential” filings.  On April 30, 2020, the Chief Administrative Judge for the state ordered that the restriction was being eased and certain filings, including motion papers and notices of appeal, would be permitted in pending cases beginning on May 4, 2020;[1] but a significant portion of the restriction remains as new cases still cannot be filed unless they qualify as “essential.”  In other developments, New York state courts have also temporarily dispensed with any requirement to submit non-electronic courtesy copies of court filings until further notice,[2] and have further announced that they will not order or compel discovery, including depositions, from “physicians or other medical personnel . . . who perform services at a hospital or other medical facility that is active in the treatment of COVID-19 patients.”[3]

The Supreme Court of Georgia has issued a draft rule on the use of video technology in Georgia state court proceedings in order to “enable[e] cases to proceed where possible.”[4]  The draft rule would permit videoconferencing to be used for civil pre-trial proceedings and for non-jury trials in civil cases where there is no right to a jury.[5]

Federal courts are taking different approaches to requests that would delay cases.  For example, a New York federal court had denied a motion by plaintiff’s attorney to withdraw as counsel on March 18, 2020.  Counsel then moved for reconsideration.  On April 28, 2020, the court decided to extend all deadlines in the case, and to reverse its earlier decision denying counsel leave to withdraw.[6]  The court held that “[t]he delays caused by COVID-19, and the extension [of discovery] the Court has granted as a result, have materially changed the circumstances of this case in a manner that warrants reconsideration of the Court’s earlier order.”[7]

By contrast, a federal court in North Carolina refused to reconsider an order denying the parties’ joint request to adjourn certain case deadlines.[8]  In a scathing opinion the court held that a “scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.”[9]  The court noted that the parties had delayed in making an attempt to seek the court’s leave to adjourn deadlines and “had not bothered to consult with any [deposition] witnesses about any scheduling issues,” which the court held “bespeaks neither of diligence nor of good faith.”[10]  The court held that it would “not rest a finding of good cause (or excusable neglect) for discovery extensions . . . on bald assertions and mere speculation . . . .”[11]

Similarly, a federal court in Georgia denied a joint request for a stay in light of the pandemic.[12]  Instead, the court directed the parties “to continue with any discovery that can be completed taking appropriate precautions with regard to the Coronavirus situation.”[13]  A California federal court also rejected a joint request to extend deadlines, recognizing that although the pandemic is a “serious public health emergency . . . the Parties have failed to explain why they cannot conduct the remaining depositions by telephone, video, or some other remote means.”[14]

Courts are also not necessarily allowing the pandemic to serve as a basis for emergency relief.  A federal court in New York rejected, on jurisdictional grounds, a request by a group of nurses to require a hospital to provide protective equipment and take other steps to mitigate the risk of infection to New York health care workers pending an arbitration between the nurses and the hospital over the appropriate steps to be taken by the hospital.[15]  The Court held that it is “deeply sympathetic to both sides: Nurses are among the heroes of this moment, putting their own lives at risk each and every day in an effort to save the lives of others; and the challenges facing hospitals—extraordinary demand and dwindling resources, with lives hanging in the balance—are undoubtedly staggering.”[16]  But the court found that it lacked subject-matter jurisdiction to grant the injunction, which would not preserve the status quo and thus would not be in aid of the parties’ pending arbitration.[17]

More and more courts are pushing to keep civil litigation as close to “normal” as possible under the circumstances.  Courts are also proving reluctant to circumvent normal rules—whether the standard for extending deadlines or for injunctive relief—despite the pandemic.  Nonetheless, courts are also acknowledging that things are not “normal” right now, and that in certain cases the pandemic requires changes to normal procedures.

 

[1] https://www.nycourts.gov/whatsnew/pdf/Memo-04-30-20.pdf.

[2] https://www.nycourts.gov/whatsnew/pdf/AO-87-20.pdf.

[3] https://www.nycourts.gov/whatsnew/pdf/AO-88-20.pdf. 

[4] https://www.gasupreme.us/wp-content/uploads/2020/05/draft-video-trial-rule.pdf.

[5] Id.

[6] 2020 U.S. Dist. LEXIS 75303 (S.D.N.Y. Apr. 28, 2020). 

[7] Id. at *7. 

[8] 2020 WL 2113460 (M.D.N.C. May 4, 2020). 

[9] Id. at *1. 

[10] Id. at *5 (emphasis in original). 

[11] Id.

[12] 2020 U.S. Dist. LEXIS 77307 (N.D. Ga. Mar. 20, 2020). 

[13] Id. at *2-3.

[14] 2020 U.S. Dist. LEXIS 76393 (S.D. Cal. Apr. 30, 2020).

[15] 2020 WL 2097627 (S.D.N.Y. May 1, 2020).

[16] Id. at *1. 

[17] Id. at *3.