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COVID and the Courts: Discovery in the Time of Coronavirus
Client Alert | 2 min read | 04.14.20
As discussed last week, many courts have issued standing orders delaying civil case deadlines. Litigants should note, however, that discovery-related deadlines set pursuant to statute, local rule, or case-specific scheduling orders have sometimes been excluded from the blanket extensions granted by federal and state trial courts. For example, while the Northern District of Illinois’ 39-day blanket extension order explicitly encompasses discovery deadlines, the District of Maryland explicitly exempted the conduct of discovery in civil cases from its 84-day extension of other civil filing deadlines. And although California state courts have suspended all jury trials for 60 days, that order does not appear to extend to discovery deadlines, which under California law are not automatically affected by a change in the trial date. It is therefore important for litigants with active cases to consider whether and how any COVID-related delays impact pending discovery deadlines—and if standing delay orders do not provide any relief from discovery obligations, consider whether such relief may be warranted.
While this consideration will ultimately depend on case- and client-specific needs, litigants should keep a few things in mind, including:
- The Impact of COVID on Written Discovery – While it remains relatively easy for counsel to serve discovery requests, it may be practically impossible to respond within the time allotted under the FRCP or state law because the documents or employees needed to complete the response are inaccessible, unavailable, or redirected to urgent pandemic response.
- The Impact of COVID on Document Collection & Review - The COVID-19 pandemic is generally not affecting the availability of document review or discovery platforms, but it may significantly limit the ability of litigants to conduct on-site document collections or to engage document review teams.
- Deposition Difficulties Resulting from COVID – Current travel restrictions make many in-person depositions impossible. Video or telephonic depositions are generally permitted in federal court under FRCP 30(b)(4), but only by stipulation of the parties or by court order. State court rules on remote depositions vary. For example, New York Civil Practice Rule 3113(d) largely mirrors federal rules allowing for remote depositions by stipulation of the parties (NY CPLR 3113(d)). But under a recently-adopted emergency rule in California, either the witness or the deposing party can unilaterally elect to hold the deposition remotely.
Litigants in discovery will need to actively evaluate how COVID-19 will affect their ability to conduct discovery and meet applicable deadlines, as well as case-specific strategic considerations. In the event that an extension of discovery deadlines is necessary, we recommend seeking consent from opposing counsel and/or relief from the court early, rather than waiting until the deadline is looming.
Insights
Client Alert | 4 min read | 08.07.25
On July 25, 2025, the Eleventh Circuit Court of Appeals issued its decision in United States ex. rel. Sedona Partners LLC v. Able Moving & Storage Inc. et al., holding that a district court cannot ignore new factual allegations included in an amended complaint filed by a False Claims Act qui tam relator based on the fact that those additional facts were learned in discovery, even while a motion to dismiss for failure to comply with the heightened pleading standard under Federal Rule of Civil Procedure 9(b) is pending. Under Rule 9(b), allegations of fraud typically must include factual support showing the who, what, where, why, and how of the fraud to survive a defendant’s motion to dismiss. And while that standard has not changed, Sedona gives room for a relator to file first and seek out discovery in order to amend an otherwise deficient complaint and survive a motion to dismiss, at least in the Eleventh Circuit. Importantly, however, the Eleventh Circuit clarified that a district court retains the discretion to dismiss a relator’s complaint before or after discovery has begun, meaning that district courts are not required to permit discovery at the pleading stage. Nevertheless, the Sedona decision is an about-face from precedent in the Eleventh Circuit, and many other circuits, where, historically, facts learned during discovery could not be used to circumvent Rule 9(b) by bolstering a relator’s factual allegations while a motion to dismiss was pending. While the long-term effects of the decision remain to be seen, in the short term the decision may encourage relators to engage in early discovery in hopes of learning facts that they can use to survive otherwise meritorious motions to dismiss.
Client Alert | 4 min read | 08.06.25
FinCEN Delays Implementation Date and Reopens AML/CFT Rule for Investment Advisers
Client Alert | 4 min read | 08.06.25
Series of Major Data Breaches Targeting the Insurance Industry
Client Alert | 11 min read | 08.06.25