If you want to take a break from your pending cases to focus on your employees and your business, what can you do? First, the answer will depend on whether there is a shelter-in-place order where you are located, and the extent of the order. Restrictions requiring you to stay at home unless you are an "essential" employee may be all the reason you need to postpone a deposition at opposing counsel's office, for instance.
In addition, the answer will depend on the jurisdiction in which your case is pending. We have reviewed the COVID-19 emergency rules in several jurisdictions (both state and federal), below. Depending on where your lawsuit is pending (or where you plan to file one), and what you're hoping to accomplish with regard to the procedure of your case, courts' COVID-19 emergency orders may help you to put your business goals first during the pandemic.
California state courts
On 7 April 2020, California's Judicial Council adopted emergency rules in response to COVID-19.
Under those rules, the statute of limitations for civil causes of action are tolled, which can help if you need additional time to sue. In addition, if you are running up against the deadline to bring a case to trial or to start a trial after the grant of a new trial, you will have six additional months. Finally, individuals sitting for their deposition can have their depositions taken remotely, without being in front of the deposition officer (i.e., court reporter) — meaning they won't have to choose between running afoul of a notice of deposition or following social distancing guidelines.
What the Emergency Rules do
- Toll the statutes of limitation for civil causes of action (Emergency Rule 9)
- What the rule says: Statute of limitations in civil causes of action are tolled from 6 April 2020 until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.
- What this means in practice: The statute of limitations for any cause of action you are considering alleging in a lawsuit will be tolled (suspended) until 90 days after the Governor's declaration that the state of emergency related to the COVID-19 pandemic has been lifted, at which point the statute of limitations will begin to run again.
- Extend the time by which a civil action must be brought to trial or by which a new trial must be brought by six additional months (Emergency Rule 10)
- What the rule says: Under California Code of Civil Procedure section 583.310, an action must be brought to trial within 5 years after the action is commenced. In addition, under California Code of Civil Procedure section 583.320, if a litigant is granted a new trial, the new trial must be brought to trial in three years. Under Emergency Rule 10, for cases filed on or before 6 April 2020, each deadline is extended by six months.
- What this means in practice: Though this may not have an extensive impact on cases without trial dates looming, if you do have a case running up against the five-year mark for a trial, or a three-year mark for a new trial, you'll have some additional time.
- Take depositions through remote means (Emergency Rule 11)
- What the rule says: A party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition.
- What this means in practice: An individual sitting for a deposition does not have to be present with the court reporter (the officer authorized to administer the oath). Therefore, if you are sitting for a deposition, you need not take an oath in person, and can practice safe social-distancing while being deposed. However, you may still want your counsel present — and not just remotely. Consider working with the opposition to agree to postpone a deposition if you're not comfortable with proceeding with remote counsel. Though the current statewide shelter-in-place order deems legal services essential when necessary to assist in compliance with legally mandated activities (which would arguably allow your counsel to come to your home and proceed with the deposition if you are socially distancing), local shelter-in-place orders vary, and the reality is that many people are uncomfortable being in the physical presence of others given the possibility of contracting COVID-19.
Chicago, Illinois (Cook County, Law Division)
In Cook County (Chicago) specifically, as of April 2, under Circuit Court General Administrative Order 2020-1 (COVID 19 Emergency Procedures for the Commercial Calendar Section), court dates will be continued for 30 days, discovery deadlines are continued to that future 30-day court date, cases set for trial will be reset, and contested motions filed but not set for briefing are stricken. However, if a contested motion has already been set for briefing, that briefing schedule remains in place, even though any hearing date already set on the contested motion will be continued for approximately 30 days. In addition, though trials will be reset, parties should be prepared to go to trial 60 days from their new trial setting date. There is some relief during the pandemic, but litigants will be expected to "keep their head in the game," so to speak, given the relatively short delays.
- Court dates continued and reset for 30 days
- What the order says: With the exception of emergency motions, all court dates set by order are continued and reset for approximately 30 days. Motions to compel or extend discovery dates are not valid emergency motions, and should not be filed.
- What this means in practice: All court dates are continued for approximately 30 days — including motions to compel discovery or extend discovery deadlines. If you and your opponent are in a discovery dispute, it must wait at least 30 days before you'll be able to obtain relief from the court.
- Discovery deadlines extended to the future 30-day date
- What the order says: All discovery deadlines, completion dates and/or filing dates contained in existing case management orders will be automatically extended to the future 30-day date. New dates for those activities will be set in new case management orders.
- What this means in practice: Any existing discovery deadlines are automatically extended to that future 30-day court date. Therefore, if you have a looming written discovery, document production, or oral discovery deadline, it will be extended to the future 30-day court date. This will allow some additional time, but will not allow you to extend discovery responses or depositions indefinitely. When you appear before the judge on the future 30-day date, be prepared to explain what you've done (or plan to do) to meet the upcoming deadline.
- Briefing schedules on contested motions are not extended
- What the order says: Briefing schedules for contested motions (motions where one party asks for relief from the court and the other party is likely to contest that relief) remain.
- What this means in practice: If one party in litigation filed and presented a contested motion, and the court already entered a briefing schedule, there is no delay. You will need to comply with the briefing schedule. The court date for the hearing will, however, be moved to the aforementioned 30-day court date.
- Motions not already set are stricken
- What the order says: All motions not set by order are stricken and will need to be renoticed and scheduled when normal court resumes.
- What that means in practice: If a litigant filed a motion, and noticed it for presentment before the judge, but never made it to the presentment date and a briefing schedule was never entered (because of COVID-19 or otherwise), the motion is stricken and must be renoticed. Thus, if opposing counsel filed a contested motion against you, but no briefing schedule was set, you will not have to respond to that motion until a briefing schedule has been entered, which will be entered, at earliest, at the 30-day court date.
- Cases set for trial rescheduled
- What the order says: Cases set for trial that have been reset by the order will be set for trial setting (meaning they will be set for a date to obtain a new trial date) on the day to which they have been rescheduled. In addition, cases set for trial beginning 16 April 2020 through 15 May 2020 will have those trial dates converted to trial setting dates. All cases affected by order should expect to have a trial date set within 60 days of the trial setting date, assuming normal court operations have resumed. Where all parties agree to maintain the currently scheduled trial date, the court will accommodate that agreement.
- What this means in practice: If your case had a trial date between April 16 and 15 May 2020, you may get some extra time before going to trial once court operations resume as normal, but you should be prepared to go to trial within 60 days of the trial setting date. If the parties maintain the currently scheduled trial, the court will accommodate the parties' agreement (assuming the court is back in operation or that a trial can be conducted remotely).
New York state courts
On 21 March 2020, Governor Andrew Cuomo issued Executive Order 202.8 (Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency), which, under a directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, tolled the statute of limitations for certain types of matters.
- Tolling statute of limitations and service
- What the order says: The Executive Order temporarily suspends and tolls any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to civil practice law and rules from the date of the order until 19 April 2020.
- What this means in practice: Similar to California, the statute of limitations for any civil cause of action a litigant is considering alleging in a lawsuit will be tolled (suspended). Here, under the current Executive Order, the statute of limitations will only be tolled until 16 April 2020, at which point it will begin to run again, short of any other orders.
- Remote operations
In a 6 April 2020 press release issued by the State of New York Unified Court System, the Chief Judge of the court noted that virtual court operations allowing essential (certain criminal, family, housing, and Supreme Court matters (dealing with mental hygiene, guardianship, temporary orders of protection, and the like)) and emergency court proceedings to be conducted remotely are now in effect statewide. In addition, the Chief Judge confirmed that a plan will be announced in the coming days and implemented next week to expand virtual operation beyond the limited category of essential and emergency matters. Though the details have not yet been finalized or released, according to the press release:
- Judges will be asked to schedule and conduct compliance and settlement conferences in pending matters by video or telephone to resolve outstanding issues, moving cases closer to final resolution and, wherever possible and appropriate, facilitating settlements.
- Judges and legal staff will maximize the opportunity and prioritize the resolution of undecided matters while working from home.
- Even though trials cannot be conducted and other aspects cannot be addressed, the courts will use this opportunity to cut into the motion backlog, to put the courts in a better position to resume normal operations at full speed.
What this means in practice: If you have civil matters pending before a New York state court, keep an eye out for soon-to-be implemented rules establishing virtual operation. Once established, expect that, with the exception of trials, proceedings in your litigation will move along remotely with relative speed.
Texas state courts
Through a series of emergency orders, the Texas state court system has implemented measures to delay statutes of limitations and service, but to encourage remote participation in proceedings generally, including depositions.
- Statute of Limitations and Service Delayed (Eighth Emergency Order)
- What the order says: All deadlines regarding service and the statute of limitations in civil cases that fall from March 13 through June 1 are delayed until June 1.
- What this means in practice: The statute of limitations for any civil cause of action in a case will be tolled until June 1, as will deadlines for service. If the statute of limitations for a cause of action you may wish to file is close to having run, this rule will allow you a couple of months to proceed.
- Depositions, Hearings, and other Proceedings Remotely (First Emergency Order/Third Emergency Order/Eighth Emergency Order)
- What the orders say: The orders allow or require anyone involved in a hearing, deposition, or other proceeding of any kind — including a party, attorney, witness, or court reporter, but not a juror — to participate remotely, such as by teleconferencing, videoconferencing, or other means. The orders also allow for consideration as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means. In addition, proceedings can be conducted away from the court's usual location, and only with reasonable notice and access to the participants and the public. Though no non-essential proceedings should be held-in person, with the introduction of new remote proceedings capability through Zoom, most non-essential proceedings, except for jury trials, can be conducted remotely, and there are no limitations on those remote proceedings if reasonable notice and access is provided to the participants and the public.
- What this means in practice: This rule openly encourages remote participation. With this rule, unless your specific court or judge says otherwise, your litigation — including depositions, hearings, and even non-jury trials — are likely to move forward remotely without delay.
Florida state courts
On 6 April 2020, Florida's Chief Justice issued a new emergency order suspending jury trials in Florida and extending other state legal deadlines through 29 May 2020 because of the COVID-19 public health emergency. (Administrative Order No. AOSC20-23, In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts Administrative Order).
- Suspension of jury trials, social distancing, and remote technology
- What the order says: The April 6 order, which emphasizes the need for courts to continue applying social distancing and to use remote technology to keep people safe while also honoring legal requirements, lengthened a prior order that had set the ending date for emergency pandemic court procedures at mid-April. Under the April 6 order, chief judges are directed to take all necessary steps to facilitate conducting proceedings with the use of technology to maintain judicial workflow to the maximum extent feasible, and chief judges' authority to conduct business or approve additional court proceedings in the interest of justice (with the exceptions of grand jury proceedings, jury selection, and criminal and civil jury trials, all of which are suspended) is not limited if doing so is consistent with protecting the health of participants and the public health. Florida's Chief Justice had entered an order prohibiting in-person proceedings for non-essential matters (AOSC20-15); suspended civil jury trials through at least 17 April 2020 or subsequent order (AOSC20-17); and indicated a move toward remote proceedings by entering an Administrative Order permitting oaths (in depositions and other proceedings) to be administered and taken remotely through audio-visual means (AOSC20-16).
Like circuit courts in any other state, Florida's circuit courts have handled the impact of COVID-19 with various emergency rules.
- In the 11th Judicial Circuit of Florida (Miami-Dade County), for instance, COVID-19 Advisory #12 (Administrative Order 20-04) was issued on March 26 extending the postponement of all proceedings except emergency and "mission critical" court proceedings (neither of which include typical, non-emergency civil litigation) through 17 April 2020. Advisory #12 also suspended civil proceeding time limits (including statutes of limitations) and deadlines set by judicial order and/or authorized by rule and statute originally suspended beginning 13 March 2020 through 20 April 2020 (extending the original end-date of the extension, set for 27 March 2020 under Administrative Order 20-03).
- Similarly, on 23 March 2020 (retroactive to 16 March 2020), the Chief Judge of the Ninth Judicial Circuit of Florida (Orange and Osceola Counties) entered an Amended Temporary Order Governing Trial Court Proceedings in which all jury trials scheduled between 16 March 2020 and 17 April 2020 were postponed until further order of the court. The Amended Temporary Order stated that non-essential proceedings and events could be conducted if the Presiding Judge could do so by using technological resources such as video or telephone conferencing. On March 18, the Chief Judge published a "Letter to the Community," in which he confirmed that the majority of non-essential services and hearings would move to remote technological platforms. What it means in practice: Deadlines, including statute of limitations, those set by judicial order, and those authorized by rule and statutes will be suspended and tolled. However, given the Chief Judge's mandate to move proceedings along remotely, and Florida circuit courts' nod to the same, one can anticipate that Florida courts will likely follow New York's footsteps and move as many proceedings forward at a relatively normal pace with the assistance of remote technology. If you have a case pending in Florida state court, check with your particular court and judge, and if the timing reprieve you seek is not otherwise in place, work with the opposition or petition the court with good cause as to why a delay is necessary.
Federal District Courts
For litigants with cases pending in federal district courts, the rules vary per district court, similar to the various rules per circuit court in a single state court system. However, where state court systems have focused on establishing infrastructure and rules to conduct court business remotely, most federal courts regularly conducted business remotely before the pandemic. Therefore, deferring action in an otherwise fast-moving case is not likely to be obtained as the inherent result of waiting for remote capabilities to be implemented. Instead, except for some overarching guidelines, district courts have given individual judges wide discretion in the pace in which to move forward with proceedings during the pandemic.
What about matters that won't necessarily come before the judge, like depositions? Unless otherwise ordered by the court, the parties will need to follow the Federal Rules of Civil Procedure. Regarding depositions, for instance, Fed. R. Civ. P. 30(b)(4) allows the parties to stipulate (or that the court may on motion order) that a deposition be taken by telephone or other remote means. If you are a deponent and do not stipulate, you won't be required to sit for a remote deposition unless and until the opposing party takes the step of moving to compel with the court and the court enters an order requiring you to do so. Requiring the opposition to file a motion will take some time, and depending on the jurisdiction and the judge, a hearing may be required, which will also take time. However, be certain to have good cause for not agreeing to move forward remotely. Given the nature of the pandemic, judges will likely expect parties to conduct proceedings remotely, where necessary, so litigation can move forward as efficiently as possible.
We have highlighted the emergency orders related to COVID-19 of several federal district courts below.
United States District Court for the Southern District of California
Emergency extension of jury trials, and judicial discretion regarding all other matters (17 March 2020 and 23 March 2020 Orders)
- What the orders say: All jury trials in civil cases are continued to 16 April 2020, and new trial or status dates will be set in individual cases on or before 16 April 2020 (unless the emergency suspension of trials is extended). Otherwise, individual district judges retain discretion case-by-case to schedule civil proceedings, hold hearings, conferences, and bench trials, and to otherwise take any actions that may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the parties. In civil cases, the personal appearance of counsel, parties, witnesses, or other non-court personnel at proceedings, hearings, or conferences is excused, unless they are ordered to appear in person by a judicial officer. Judges may conduct court proceedings by telephone or video conferencing where practicable and consistent with the law.
- What this means in practice: Other than a jury trial, if you want to delay procedure in a case — including issuing or responding to written discovery, depositions, or motion deadlines — you must work with opposing counsel or seek a continuance from the judge. Relying on Federal Rules of Civil Procedure and local rules weighing in your favor can help.
United States District Court for the Northern District of California
Civil Matters Decided on the Papers (General Order No. 72 In re: Coronavirus Disease Public Health Emergency (16 March 2020))
- What the order says: All civil matters will be decided on the papers, or if the assigned judge believes a hearing is necessary, the hearing will be by telephone or videoconference. This applies to motion hearings, case management conferences, pretrial conferences, settlement conferences and Alternative Dispute Resolution (ADR) proceedings. Parties must check the assigned judge's scheduling notes for specific instructions on telephone/video appearances, or the ADR webpage.
- What this means in practice: Proceedings are not delayed. Because matters are more likely to be decided on the papers without hearings (and without having to work around the schedules of parties and attorneys), proceedings may move along relatively quickly. Similar to other federal district courts, working with opposing counsel and presenting a well-reasoned argument to the judge requesting a delay or extension is your best option for respite from moving forward at a quick clip. Civil Jury Trials Vacated (General Order No. 72 In re: Coronavirus Disease Public Health Emergency (16 March 2020))
- What the order says: No jury trial will be commenced before 1 May 2020. Any trial dates currently scheduled during that period are vacated.
- What that means in practice: If you had a trial date scheduled before 1 May 2020, you will have some additional time to prepare (or to consider other resolution, such as settlement), because your trial date has been vacated and will need to be reset.
United States District Court for the Northern District of Illinois
Extension of all Deadlines (with the Exception of Certain Motions) (Amended General Order 20-0012 (17 March 2020) and Second Amended General Order 20-0012 (30 March 2020))
- What the orders say: The Amended General Order extended by 21 days all deadlines, in all civil cases, whether set by the court, the Federal Rules of Civil Procedure, or the Local Rules. On March 30, the Second Amended General Order extended all deadlines in civil cases by an additional 28 days. The presiding judge, case-by-case, may extend, shorten, or revoke the 21-day extension and/or the 28-day extension. Deadlines concerning appeals, or extensions of deadlines imposed by Civil Rules 50(b) or (d) (regarding judgment as a matter of law in a jury trial), 52(b) (regarding amendments to findings of fact and conclusions of law after a trial), 59(b), (d), or (e) (regarding a motion for a new trial or to amend judgment), or 60(b) (regarding a motion for relief from a final judgment or order) are excepted.
- What it means in practice: Unless you're concerned about an appeal or other post-trial or post-judgment relief (or the presiding judge revokes the extension regarding your specific case), activity in your case will be generally suspended. Case hearings, jury trials, bench trials and settlement conferences reset (Second Amended General Order 20-0012 (30 March 2020))
- What the order says: Civil case hearings, bench trials, and settlement conferences scheduled for on or before 1 May 2020 are stricken, to be re-set by the presiding judge to a date on or after 4 May 2020. Civil jury trials scheduled for on or before 29 May 2020 are stricken, to be re-set by the presiding judge to a date on or after 1 June 2020.
- What it means in practice: If your case was headed to trial soon, you'll have additional time to prepare or to otherwise resolve the litigation.
United States District Court for the Southern District of New York
Extension of Jury Trials; Extension of Proceedings at the Discretion of the Judge ((20 MISC 154(a) (13 March 2020) and 20 MISC 172 (27 March 2020) (standing orders) and 30 March 2020 Memo on Court Operations))
- What the Standing Orders/Memo say: Civil jury trials scheduled to begin on or before 27 April 2020 are extended until at least 1 June 2020, at the earliest. Compliance with all trial-specific deadlines to begin before 27 April 2020 is at the discretion of the presiding judge. In addition, individual judges presiding over civil proceedings are granted discretion to take actions consistent with the order to ensure fairness over the proceedings and the rights of parties. Individual judges can continue to hold hearings, conferences, and bench trials, in exercising their discretion, and are strongly encouraged to conduct court proceedings by telephone and video conferencing. Counsel in civil cases are urged to check the web pages of individual judges for any orders of general applicability extending time in civil matters, adjourning conferences, and the like.
- What this means in practice: For parties with jury trials set to begin before 27 April 2020, trials will be continued until at least 1 June 2020. However, the delay of any other proceedings will be at the discretion of the particular judge on the case.
How you should proceed if you want to focus on your employees and business
Just as people are working remotely from home where they can, courts are continuing to conduct business remotely. If you need to put activity in your lawsuit on hold — whether issuing discovery, reviewing documents for production, sitting for depositions or helping your counsel prepare for the deposition of the opposition's key witness — see if there are any rules in your jurisdiction applicable to your case that will automatically allow the extension you seek. If there are none, try to work with the opposition first. Judges are more likely to grant extensions if both parties agree. If the opposition objects, make sure you have good cause and approach the judge for an extension well before any pending deadline. Judges are more likely to grant extensions when parties have asked well before the deadline. Because there is no definitive end to the shelter-in-place orders, courts are continuing to move forward in the best way they know how, and it appears they are expecting litigants to do the same.