Reger Rizzo & Darnall Client Alert (April 9, 2020).

The COVID-19 pandemic is causing obvious health concerns, and we all hope for and wish the best for the health and safety of everyone. It is also causing some confusion among litigators, as there is no uniformity among how courts are handling ongoing litigation during this crisis. Courts in Pennsylvania, New Jersey, Delaware, and New York have closed to in-person hearings, and will generally hear only emergent matters. Civil matters are being handled disparately, depending on the venue.  

Civil matters are ongoing, however. Though we hope this health and social crisis is over quickly, in the meantime, how are lawyers supposed to continue litigating cases? The beating heart of civil matters is, of course, discovery. Often, cases are won or lost during the process of exchanging documents, taking depositions, and issuing subpoenas. There are practical matters that must be addressed, and this article will try to address some of them.

For cases where testimony from a medical provider is needed, courts have almost universally held that those providers need not appear during the period of the pandemic. It is not clear how such a delay will ultimately be handled, but it seems reasonable that trials will be delayed until that testimony can be secured. It also seems reasonable to predict that courts will put at least some pressure on parties to either resolve the case or agree to some stipulation(s), whereby the need for testimony by a medical provider is not necessary. Though there will undoubtedly be some lasting effect where stipulations of this kind become more routine, it seems unlikely that testimony by medical providers will become a thing of the past.

In the meantime, how should attorneys continue litigating a matter while person-to-person contact is not possible? Document exchange can be done electronically. To be sure, most civil litigators in the age of electronic filing are familiar with electronic document exchange of some kind, so this procedure should not be too significant a change from typical practice.  Courts are technically open, but getting a subpoena approved and/or issued may be a challenge. The practitioner can, of course, follow the procedure, and await the issuance of the subpoena, however long that may take. Neither the Federal Rules of Civil Procedure nor the Court Rules of Pennsylvania, New Jersey, New York, or Delaware mandate use of a subpoena. Alternatively, the litigator may request the documents or records at issue. So long as there is no objection from the other parties (and here, offering to take a similar non-opposition position as to future requests by the other party(ies) may help), a letter requesting the documents or records may suffice. A subpoena carries the force of potential court penalties (in Latin: “under penalty”), but a subpoena is not required by court rule. To be sure, for patient medical records and the like, existing privacy rules almost certainly require a subpoena.  

Depositions present a more significant challenge. Thankfully, the technology exists to fairly easily conduct a deposition by video link, while the witness, the court reporter, and the interlocutors are all in different places. Doing so is not ideal, though, by any means. First, video link – even though it is video – deprives the interlocutors of the ability to view in real-time the reaction, body language, and facial expression of the witness. Deposition by video link takes longer than it should, too. Good as the technology may be, there will be lags. (This kind of time-delay is similar in many ways to taking a deposition of a non-English speaker, and using an interpreter.) Most importantly, proceeding with a deposition in this manner requires the proponent to have all exhibits intended to be used in the deposition prepared ahead of time and sent to the location where the witness will be testifying. Additionally, some thought should be given to whether to conduct depositions via video link. To be sure, if deadlines are approaching, video may be the only option. If the witness is relatively unimportant to any decision by a fact-finder, video link may be a useful way to complete discovery obligations. However, only one deposition of one witness may be taken, unless the court permits a re-deposition. Usually, a re-deposition is permitted only infrequently and for a (very) good cause. That said, if the witness is a party whose testimony, demeanor, affect, and the like is critical to winning or losing the case, perhaps it is worth waiting to depose the witness live and in person. In fact, good practice suggests that if the deposition is critical, one should wait until it can be done live. If at some point, waiting to depose a witness live is no longer a possibility, resort to video link may be taken.     

Again, we hope the COVID-19 pandemic ends soon and at as little cost as possible. Until then, however, the cases must go on. We are prepared and experienced in meeting these practical challenges, and we are confident we can help.