COVID-19 Continues to Impact Civil Litigation and Discovery in a Variety of Ways

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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).  The COVID-19 pandemic continues to slow down most civil cases throughout the United States, and is impacting almost every aspect of litigation.  Some courts, however, seem to now be determined, after weeks of delays, to press ahead.

As outlined in our prior updates, New York state courts were prohibiting new court filings, other than certain limited categories of filings deemed “essential.”  On April 7, 2020, it was announced that the courts would begin accepting filings on pending “non-essential” proceedings, although it appears that the courts will continue to prohibit the commencement of new “non-essential” civil actions for now.[1]  That same day, New York Governor Andrew Cuomo extended his previous Executive Order tolling certain filing deadlines, delaying the end of the tolling period until May 7, 2020.[2]  Accordingly, litigants may see some “non-essential” proceedings begin to resume in New York state courts, but progress may be slow in light of the extended tolling period.

Some New York courts are already anticipating the end of the prohibition on “non-essential” filings.  For example, in a case where certain parties had posted a bond earlier in the action, the court issued an order stating that the parties must file a special proceeding if they want to release the bond, and must do so “[w]ithin fifteen (15) days of the cessation of the” ban on “non-essential” filings.[3]

The pandemic continues to produce wide ranging decisions in other courts as well.  COVID-19’s effects have even been felt in the context of discovery sought pursuant to Section 1782,[4] which permits federal courts to enter orders requiring persons and entities found in the United States to provide discovery for use in foreign proceedings (you can read more about Section 1782 in our prior posts on that topic).  A federal district judge in California recently affirmed a magistrate judge’s decision to grant Section 1782 discovery for use in pending litigations in Germany, Switzerland, Denmark, and Turkey.[5]  The court rejected plaintiff’s request that the production be made immediately, however, finding that “due to the COVID-19 pandemic, this need has become less pressing,” in particular because the “deadline in [the] Swiss Action was pushed back due to [the] pandemic.”[6]  The court instead directed the parties to meet-and-confer regarding a “reasonable schedule,” taking into account, among other things, “the ongoing COVID-19 epidemic.”[7]

Other courts are refusing to slow things down or grant requests for relief premised upon the COVID-19 pandemic.  A federal judge in New Jersey rejected a plaintiff’s attempt to invoke COVID-19 to obtain an injunction requiring the defendant to fund a mortgage for a residential purchase.[8]  The defendant alleged that it was unable to fund the mortgage due to “the financial crisis created by the COVID-19 pandemic,” but the plaintiff argued that her inability to obtain the mortgage kept her from getting a new house, which, in turn, could “threaten her health and life” in light of the pandemic.[9]  The court dismissed the plaintiff’s concerns as “speculative,” but did direct the parties to engage in expedited discovery.[10] 

In New York state court, a judge required a landlord to provide temporary housing for certain tenants so that emergency repairs could be carried out at the property, despite the ongoing pandemic.[11]  In Missouri, a federal court rejected defendants’ motion for a stay due to the pandemic.[12]  The court stated that it “acknowledges and appreciates the newfound challenges posed by the pandemic,” but noted that “all the parties to this suit have dealt with those challenges in a courteous, professional, and resilient manner,” including through email and telephonic meet-and-confers.[13]  The court held that “these practices, as well as the continued professionalism of the parties, remain the most effective tools for managing the litigation-related challenges posed by the coronavirus.”[14]  A federal court in New Mexico refused to delay a settlement conference in order to allow the plaintiff to appear in person, ordering instead that the plaintiff appear by videoconference so that the case can proceed.[15]  And while some federal appeals courts have extended or suspended certain filing deadlines, the deadlines to file notices of appeal in federal cases remain unchanged.[16]

In short, the COVID-19 pandemic continues to influence civil litigation in varied, and sometimes unpredictable, ways.  As the federal court in Missouri noted, professionalism and courtesy in civil litigation is more important now than ever, and litigants must be willing to adapt to new orders and directives coming in the wake of pandemic.  Parties must also be prepared to proceed on pre-COVID-19 litigation schedules, however, as more and more courts hesitate to extend deadlines or delay cases further.

 

[1] https://trialacademy.org/docDownload/1584409. 

[2] https://www.governor.ny.gov/news/no-20214-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. 

[3] 2020 NYLJ LEXIS 767 (N.Y. Justice Ct. Mar. 30, 2020).

[4] 28 U.S.C. § 1782.

[5] 2020 WL 1694353 (N.D. Cal. Apr. 7, 2020). 

[6] Id. at *6.

[7] Id.

[8] 2020 U.S. Dist. LEXIS 58852 (D.N.J. Apr. 3, 2020). 

[9] Id. at *4, *11-13. 

[10] Id. at *12-13.

[11] 2020 N.Y. Misc. LEXIS 1380 (N.Y. Sup. Ct. Mar. 25, 2020).

[12] 2020 U.S. Dist. LEXIS 60963 (W.D. Mo. Apr. 7, 2020).

[13] Id. at *3. 

[14] Id.

[15] 2020 U.S. Dist. LEXIS 61369 (D.N.M. Apr. 6, 2020).

[16] E.g., http://www.ca2.uscourts.gov/home.html (Second Circuit Court of Appeals, noting that “the filing date for a notice of appeal or other document that confers jurisdiction on the Court were not covered by” the Court’s extension of other deadlines); http://cdn.ca9.uscourts.gov/datastore/general/2020/03/16/COVID-19%20Notice.pdf (Ninth Circuit Court of Appeals, noting that “[d]ue dates for notices of appeal, petitions for review, and any document that confers jurisdiction on this Court, are set by statute or rule and are unaffected by this notice”).