COVID and the Courts: Discovery in the Time of Coronavirus

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.