Courts Continue to Restrict Certain Filings in Civil Litigation, While Trying to Keep Discovery and Other Proceedings on Track

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We are continuing to track the impact of COVID-19 on courts and parties in civil litigation across the country. (You can read our prior updates here, here, here, and here). Many courts have moved to restrict certain filings in civil litigation, whether by formal orders affecting all courts in a particular jurisdiction, or by scolding parties that file what the court deems to be unnecessary motions in light of the current circumstances. Other courts are attempting to continue with business as usual as much they can, however, pushing parties to keep with pre-existing litigation schedules despite the ongoing pandemic.

As outlined in a prior update, New York state courts have prohibited all new court filings, other than certain limited categories of filings deemed “essential.”¹ On April 2, 2020, the state trial courts of New York County, which includes Manhattan, issued an order warning that the definition of “essential” would interpreted “narrowly.”² For applications that do not fall into a specifically enumerated “essential”category, such as health and safety-related applications, litigants in New York County are now required to make an application via email to have their proposed filing be deemed “essential.”³ Only if the court grants that application, and determines that the proposed filing is indeed “essential,” can the litigant then proceed electronically to file their proposed filing.⁴

Other courts are attempting to limit filings on a more ad hoc basis. We previously wrote about the federal court in Illinois that issued a stern decision denying a plaintiff’s request for an emergency hearing to reconsider the denial of a temporary restraining order in a trademark infringement action. Now, a federal court in Florida has issued a strongly-worded order in response to motion practice regarding the deposition of a corporate representative from a cruise ship company pursuant to Federal Rule of Civil Procedure 30(b)(6).⁵ The court stated that it felt “compelled to offer some observations in the ‘let’s-keep-things-in-perspective’ department. The entire world is in the midst of a pandemic . . . . Many people are scared. Others are panicked. Everyone is unsure about the future.”⁶ The court continued by noting that “the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits ‘emergency’ status. No, it doesn’t.”⁷

The court called the designation of the motion as an “emergency” motion “reckless.” The court expressed “shock[] that counsel could not on their own resolve the issue. Given the health and economic crisis we are in, not postponing the deposition scheduled for next week is patently unreasonable. If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.” The court held that “the deposition will not be taken next week. Life will go on.”⁹ However, the court directed “counsel for both sides to appear for a hearing at some point . . . . That hearing will require the attorneys to explain their behavior in context of the far-more-important issues this Court (and the entire world) is facing.”¹⁰

In keeping with this emphasis on paring down non-essential matters, courts have continued to extend deadlines, including for class certification discovery, fact discovery, and expert discovery.¹¹ In one case, involving expert depositions of doctors, the court noted that the doctors were “no longer available on their noticed deposition dates for reasons associated with the COVID-19 pandemic,” and so the court accordingly extended the expert discovery deadlines and permitted the parties to take depositions by video.¹²

By contrast, other courts are letting discovery and other proceedings move forward despite the ongoing pandemic. Another federal court in Florida refused to grant a joint request to extend discovery deadlines because “the deadline to complete all fact discovery passed on February 21, 2020, before the first case of COVID-19 was confirmed in Florida,” and although the expert discovery deadline was set for April 17, 2020, “the parties d[id] not specify what aspect of expert discovery is rendered impossible due to COVID-19.”¹³ The court noted that it would “accommodate all reasonable requests that relate to particular deadlines,” but that such requests must be “specifically tailored to this case, and . . . allow[] for aspects of litigation that can continue to continue.”¹⁴

Similarly, a federal court in Michigan reserved decision about whether the trial date in that case would be adjourned, but refused to adjourn the pre-trial deadlines. The court explained that “[t]he parties are able to conduct a majority of their pretrial preparations electronically, such as by conducting remote video depositions of experts. In this digital age, both parties can likely prepare for trial with minimal to no physical interaction.”¹⁵ Finally, a federal court in Washington denied the plaintiff’s motion to stay discovery, instead granting the defendant’s motion to compel plaintiff’s deposition, and holding that because plaintiff “chose to bring this case,” he must appear for said deposition “with appropriate Covid-19 protections for all concerned.”¹⁶

Based on these decisions, civil litigants must strike a careful balance in the current climate. Courts may reject filings that were once routine in civil litigation, but are now deemed by some courts to be non-essential. Other courts may expect the parties to continue as usual, and could reject attempts to obtain extensions by simply invoking to the COVID-19 pandemic generally, without explaining its specific impacts on the parties in the particular case before the court. Civil litigants should pay close attention to all orders issued by their particular judge, and general orders affecting courts in their particular jurisdiction, before making a court filing or seeking to extend deadlines.

¹ https://www.nycourts.gov/whatsnew/pdf/AO-78-2020.pdf.
² https://www.nycourts.gov/legacypdfs/courts/1jd/supctmanh/PDF/Emergency-Applications-Protocol.pdf.
³ Id.
⁴ Id.
⁵ 2020 U.S. Dist. LEXIS 56573 (S.D. Fl. Mar. 21, 2020).
⁶ Id. at *2.
⁷ Id. at *2-3.
⁸ Id. at *3.
⁹ Id. at *4.
¹⁰ Id.
¹¹ 2020 WL 1503448 (E.D. Cal. Mar. 30, 2020) (extending class certification discovery for 90 days); 2020 U.S. Dist. LEXIS 56381 (D. Nev. Mar. 27, 2020) (granting 60-day stay of discovery); 2020 WL 1624589 (S.D. Cal. Apr. 2, 2020) (granting 60-day extension of discovery deadlines).
¹² 2020 U.S. Dist. LEXIS (S.D. Cal. Mar. 31, 2020).
¹³ 2020 WL 1540326, at *1 (S.D. Fla. Mar. 30, 2020).
¹⁴ Id.
¹⁵ 2020 U.S. Dist. LEXIS 56874, at *13-14 (E.D. Mich. Apr. 1, 2020).
¹⁶ 2020 U.S. Dist. LEXIS, at *6 (W.D. Wash. Mar. 30, 2020).