The COVID-19 Pandemic Continues to Disrupt Discovery and Civil Litigation in Federal and State Courts

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Courts and parties across the country continue to figure out how to move civil litigation forward in pending matters given the current pandemic. As discussed in our prior updates (which you can read here and here), federal and state courts continue to take varying approaches in managing ongoing civil litigation, including delaying discovery and canceling non-essential hearings. Other courts are allowing discovery to go forward, particularly where the discovery involves the disclosure of electronic documents only, with warnings that there may need to be additional delays due to the pandemic.

One of the most difficult discovery issues facing courts right now is the scheduling of depositions. In an employment discrimination matter brought by a doctor against his former employer, a medical clinic, pending in the United States District Court for the District of Minnesota, the court extended the doctor’s time to take the clinic’s depositions over the clinic’s objection. Counsel for the doctor argued that “he and his family are in high-risk groups for COVID-19, and his time is currently spent managing that emergency.”[1] The court agreed, holding that:

It is essential that all Minnesotans work together to slow the spread of this terrible pandemic. In addition, counsel and litigants need to be patient and understanding with one another, and they should work cooperatively to adjust schedules as needed. The disruption caused by the pandemic, and the greater disruption that is likely in the next few days, are extraordinary. The impact on “business as usual,” particularly for smaller law firms and solo practitioners who do not have large support staffs and advanced technological systems that make a transition to remote work much easier, cannot be overstated. Moreover, it is hard to imagine a more appropriate showing of cause to extend the deadlines than plaintiff’s counsel’s need to provide assistance to family members who are at a greater risk of complications should they be exposed to the virus currently disrupting nearly every aspect of daily life in this country.[2]

The court went on to note that “pressing ahead with depositions . . . is simply unnecessary” despite both the parties’ and the court’s eagerness to see the litigation resolved.[3] The court temporarily stayed all discovery deadlines and left it to the parties to schedule depositions, with a proposal to be submitted to the court in 30 days.[4]  

Similarly, in a civil action brought by a prisoner against prison officials in federal court in Wisconsin, the defendants sought to extend the deadline to depose the plaintiff because the prison “is currently not allowing any outside visits because of concerns about infections of COVID-19.”[5] The court held that “[g]iven the global health outbreak, the motion is well taken,” and extended the discovery deadline in the action to June 1, 2020.[6]

Other courts are barring in-person depositions and other in-person proceedings altogether. A magistrate judge overseeing a civil action in the United States District Court for the Southern District of New York recently ordered that “no in-person depositions shall take place on or before April 30, 2020, absent a showing of exceptionally good cause.”[7] The court also went a step further, directing that “counsel shall conduct work remotely. This includes, but is not limited to, client meetings, work meetings, and hand deliveries of courtesy copies to the Court (courtesy copies can be sent via email or mail).”[8]

A federal court in Maryland entered a stay of all proceedings in a civil action until June 1, 2020.[9] The court’s decision was largely based on litigation pending in other forums, but the ongoing pandemic influenced the court’s decision as well. In particular, the court held that:

[t]he events of the last few weeks concerning the developing COVID-19 pandemic put the factors [for a stay] in a different posture than would apply in normal times. Court proceedings are at a virtual standstill. Courts, including this one, have entered orders suspending court proceedings and extending filing deadlines . . . .  The health authorities throughout the country counsel against personal contact and advocate “social distancing.” Litigation has become, obviously, more difficult. . . .  It makes no sense to require the parties in this case to undertake further action, whether discovery or motions practice, in the current environment.[10]

Some courts are allowing certain discovery to go forward, but indicating that related proceedings or activities in the matters may nevertheless be delayed. A judge in New York state court recently granted a motion to allow an independent medical examination of the plaintiff in a personal injury action. But, in the same decision, the court warned that a settlement conference in the case scheduled for April 16, 2020, “is likely to be adjourned given the various restrictions on court functions due to the current COVID-19 pandemic,” and that the medical examination may need to be adjourned “if [it] cannot be conducted due to the COVID-19 pandemic.”[11] A federal court in Massachusetts also allowed discovery to go forward in a case involving Freedom of Information Act requests, having “considered the ongoing coronavirus pandemic” as balanced against “the important public interests served by FOIA.”[12] The court reasoned that “the documents [defendant] must disclose are all in electronic form; therefore, the entire disclosure process can occur electronically while counsel work from home.”[13] Nevertheless, the court left open the possibility of “a reasonable extension related to coronavirus pandemic,” if needed.[14]

Some courts are canceling oral arguments and deciding motions based solely upon the papers submitted by the parties. Since March 16, 2020, all fully-briefed motions in civil actions in New York state courts have been taken on submission, without argument, unless the individual judge directs that an argument take place via Skype or other videoconferencing means.[15] Similarly, the United States Bankruptcy Court for the Southern District of New York recently granted a motion to compel discovery based solely on the motion papers, stating that “[d]ue to limitation on live court appearance by the Coronavirus (COVID-19) outbreak, the Court’s ruling is based on the documents filed.”[16]

In short, courts are continuing to delay discovery and other civil proceedings based on the pandemic. However, some courts are attempting to press forward, especially where the courts can do so without requiring in-person proceedings, such as court hearings and depositions. Where discovery can be accomplished electronically and where motions can be decided solely on the briefing submitted by the parties, courts may try to avoid delay as they attempt to keep civil cases moving forward during the ongoing COVID-19 crisis. Parties anxious to keep civil actions moving forward during this time should consider whether electronic discovery options are available, such as video depositions and production of electronic documents, and whether they can forego oral argument on motions or request arguments via videoconference or telephone.

 

[1] Case No. 18-cv-2998, Dkt. No. 225 (D. Minn. Mar. 24, 2020).

[2] Id.

[3] Id.

[4] Id.

[5] Case No. 18-cv-1767, Dkt. No. 38 (E.D. Wisc. Mar. 23, 2020).

[6] Id.

[7] 2020 WL 1326429 (S.D.N.Y. Mar. 19, 2020) (emphasis in original). 

[8] Id.

[9] 2020 U.S. Dist. LEXIS 49818 (D. Md. Mar. 23, 2020).

[10] Id.

[11] 2020 N.Y. Misc. LEXIS 1292 (N.Y. Sup. Ct. Mar. 20, 2020).

[12] 2020 U.S. Dist. LEXIS 50703, at *41 (D. Mass. Mar. 24, 2020). 

[13] Id.

[14] Id. at *41-42.

[15] https://www.nycourts.gov/whatsnew/pdf/MEMO-3.13.20.pdf.

[16] 2020 Bankr. LEXIS 749, at *1 (Bankr. S.D.N.Y. Mar. 20, 2020).