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 pass, COVID-19’s impact on civil litigation is becoming more varied, and sometimes is yielding unpredictable results.
For instance, an Indiana federal court recently denied a plaintiff an injunction, seeking to enjoin defendant from using allegedly misappropriated trade secrets in connection with wireless broadband equipment sold to Internet service providers, citing the pandemic as a factor. The court’s decision was driven, in part, by the fact that, under the current, pandemic-related conditions, “wireless internet has become critical for the public to engage in work, school, and commerce.” Accordingly, plaintiff’s requested injunctive relief “asks this Court to weigh the potential elimination of internet access to members of the public in the midst of a national emergency against what [plaintiff] itself acknowledges as minimal or no additional harm to” the plaintiff beyond what it had already allegedly suffered. The court further noted that retrieving equipment that incorporated the alleged trade secrets would be “neither feasible nor practicable” in light of the pandemic and resulting “stay at home” orders.
A Florida federal court rejected a defendant’s motion to compel the plaintiff to produce documents over which the plaintiff asserted privilege. In a scathing decision, the court denied the motion and defendant’s request that the court review the disputed documents in camera. The court explained that it, “like all of society, is in the midst of dealing with the serious and far-reaching effects of the novel coronavirus pandemic. The Court is daily, often on weekends and evenings, dealing with emergency motions, expedited motions, and other motions, matters, and requests for relief raising serious issues . . . . The instant Motion, premised primarily upon the distrust and suspicion of the good faith of opposing counsel, is not a motion that warrants in camera review or further consideration.”
In New York, state courts have criticized litigants for violating the courts’ current ban on “non-essential” court filings (which we discussed here,here, and here). A Manhattan state trial court noted that “as of March 22, 2020, no papers were to be filed” with the court. “Nevertheless, the parties filed opposition and reply” papers with the court after that date. The court directed that, going forward, “the parties shall comply with all COVID19 orders including those” relating to the ban on “non-essential” filings in New York state court.
Courts also continue to issue stays based in part on the pandemic. In holding that a stay pending the outcome of a related appeal was warranted, a Maryland federal court explained that “[t]his Court and parties in discovery are also experiencing unprecedented disruption because of the COVID-19 pandemic. . . . [C]ivil discovery must retool to avoid significant in-person interaction. A stay in these difficult circumstances thus conserves precious judicial and case resources and avoids unnecessary expenditure of time and money on discovery for a cause of action that may ultimately be invalidated” by the related appeal.
But, stays are not a given. For instance, keeping with the Maryland court’s observation that “civil discovery must retool,” but coming to a different conclusion, a California federal court rejected a defendant’s argument that depositions should be delayed because “remote depositions are ‘unworkable’ and will be ‘cumbersome.’” The court responded that “[a]ttorneys and litigants all over the country are adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely . . . . There are numerous resources and training opportunities available through the legal community to assist [defendant’s] counsel in the operation and utilization of the new technology,” including from a vendor proposed by plaintiff. A Louisiana federal court similarly authorized remote depositions, holding that, in light of the fact that “the entire world is in the midst of a pandemic . . . a deposition will be deemed to have been conducted ‘before’ an officer” authorized to administer oaths “so long as that officer attends the deposition via the same remote means . . . used to connect all other remote participants” and all participants “can clearly hear and be heard by all other participants.”
Indeed, courts are more often rejecting litigants’ use of bare references to the pandemic as an excuse to extend deadlines. Another California federal court denied the parties’ joint request to extend case deadlines, holding that the parties “fail[ed] to delineate what efforts, if any, the Parties have made to comply with the operative Scheduling Order, what specific events in light of the COVID-19 outbreak have necessitated the Parties’ Joint Motion filing, and why a two-month continuance . . . is appropriate.” The court explained that although “it is keenly aware of the serious challenges the COVID-19 pandemic has mounted upon society-at-large, particularly litigants, counsel, and the judiciary . . . the Court is not of the view that the COVID-19 pandemic somehow relaxes the legal standard controlling parties’ continuance requests.”
In short, courts all over the country are asking litigants to adapt to the pandemic, not only in terms of conducting discovery, but also in the substance of their arguments, including in motions for a preliminary injunction. Courts are also reminding litigants that the pandemic is not an excuse to flout the rules, be they pre-pandemic rules governing requests for deadline extensions or post-pandemic emergency rules restricting certain court filings. Civil litigants should be prepared to be flexible in the current environment, and mindful of both changed and unchanged practices and procedures.