Early Impacts of the COVID-19 Pandemic on Discovery

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In the wake of the ongoing COVID-19 pandemic, courts and parties across the United States are scrambling to figure how, or even if, to move discovery forward in pending matters given the current circumstances. In these early stages, federal courts are taking varying approaches and are addressing difficult questions such as how to conduct disclosure where the discovery sought is from medical professionals and institutions, many of which are presently dealing with the pandemic.

Many courts are simply blanket-extending discovery deadlines into April or May, or even later, in light of the impact of the pandemic, including in cases where counsel have had to self-quarantine due to exposure to the virus.[1] In other cases, courts have directed the parties to confer and come up with a reasonable approach under the circumstances.[2] Courts have also authorized the taking of depositions via telephone, video, or other remote means in order to keep discovery moving during the pandemic.[3]

One of the most difficult discovery issues faced by the courts, however, is how to keep discovery moving forward where discovery is being sought from medical professionals who are busy dealing with the pandemic. In a personal injury action in Illinois, one federal court entered a detailed protocol regarding depositions of medical personnel, such as the medical professionals who treated the plaintiffs.[4] The court had originally set a discovery cut-off of April 1, 2020, which was extended for 21 days by a general order affecting deadlines in all civil cases in the Northern District of Illinois.[5] The court noted the “unpredictability of the fast-moving public health crisis associated with COVID-19;” the fact that the pandemic has pushed the courts, litigants, and witnesses “into uncharted territory;” and the fact that medical providers are “very, very busy right now, and likely will be busy for weeks or months to come.”[6] The court also stated that “[a]ll hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.”[7]

In light of the foregoing, the court directed the parties to meet-and-confer to see if they could reach agreement as to whether all of the medical provider depositions were actually needed or would be duplicative of other evidence.[8] For depositions the litigants deemed necessary, the court directed the parties to submit a detailed report about the deponent, including his or her anticipated involvement in the response to the pandemic, and the witness’ “relative importance to the case,” prior to issuing a subpoena or scheduling a deposition so that the court can rule on whether and when the deposition can go forward.[9]

In the coming days and weeks, there will be many more decisions regarding discovery during the pandemic. Courts and litigants in cases involving medical professionals, such as personal injury and medical malpractice cases, will be faced with particularly difficult questions about how to balance discovery against the demands of a public health crisis.

 

[1] 2020 U.S. Dist. LEXIS 47032 (S.D.N.Y. Mar. 16, 2020) (extension of all unexpired discovery deadlines for 60 days); 2020 U.S. Dist. LEXIS 46438 (S.D.N.Y. Mar. 13, 2020) (adopting parties’ proposed amended discovery schedule in light of counsel’s self-quarantine); 2020 U.S. Dist. LEXIS 44385 (D. Nev. Mar. 13, 2020) (staying discovery until April 27, 2020).

[2] 2020 U.S. Dist. LEXIS 42808 (W.D. Wash. Mar. 11, 2020); 2020 U.S. Dist. LEXIS 46627 (D. Kans. Mar. 18, 2020).

[3] 2020 U.S. Dist. LEXIS 47032 (S.D.N.Y. Mar. 16, 2020).

[4] 2020 U.S. Dist. LEXIS 45739 (N.D. Ill. Mar. 17, 2020).

[5] Id. at *3

[6] Id. at *4-6.

[7] Id. at *6.

[8] Id. at *7-8.

[9] Id. at *8-10.