Updated May 22, 2020
In March and April, a series of state executive orders and judicial administrative orders directed the partial closure of courts across the country and the cancellation or postponement of various court proceedings. These orders were aimed at immediately halting nonessential court activity that could foster the spread of COVID-19. Since those initial orders were issued, several courts have taken steps to expand proceedings beyond essential matters and to implement virtual and other remote capabilities in an effort to progress litigation even while physical access to courthouses by and large remains limited.
These recent efforts signal a recognition by administrative and chief judges that litigants and their counsel may need to remain at home for several more weeks or months and that case-related business must proceed remotely to avoid a backlog of cases later this year. As the Chief Administrate Judge in New York recently observed, “if we can eliminate the current backlog of undecided matters, we will be in a far better position to absorb what promises to be a surge of new litigation once the court system returns to more normal operations.” Just as most attorneys are now able to work effectively from the safety of their own homes, many judges and law clerks are becoming equipped to do the same.
Our COVID-19 Litigation Resource Guide summarizes the various steps that courts in and around New York City, Los Angeles, Chicago and Washington, D.C. are taking to expand remote operations in both essential and nonessential matters while local stay-at-home orders or social distancing measures remain in place. As new steps are being taken each week, we are monitoring these developments and will update this resource guide accordingly. This guide also sets forth options that remain available for litigants to progress their cases without court intervention and for parties to engage in alternative dispute resolution (ADR) by remote means.
- Recent Changes in Court Operations
- Discovery Proceedings
- Alternative Dispute Resolution Mechanisms
- Statutes of Limitations
Most initial judicial administrative orders limited the filing of new cases, as well as written submissions in pending cases, to “essential” or “emergency” matters. Matters deemed essential or emergency differed across jurisdictions, leading to a patchwork of judicial administration nationwide. By and large, jury trials, as well as most in-person oral arguments, hearings and conferences, were canceled or postponed indefinitely. More recent orders, however, have expanded the scope of matters that courts may entertain and have granted judges the discretion to determine what matters may be heard and to establish remote procedures and protocols.
Any delays in expanding court operations are likely a result of local courts’ needing sufficient time to implement videoconference technology and other remote protocols and to ensure that court staff are properly trained in that regard. We expect to see operations continue to expand and courts to transition more fully to remote capabilities over the next several weeks. Jury trials in most courts, however, will likely continue to be infeasible while remote operations remain necessary. Litigants desiring to continue to trial without substantial delay may wish to consider agreeing to proceed by bench trial, where permitted.
New York City
New York has, for the most part, switched to a “virtual court” model and postponed in-person proceedings. By order dated March 16, all upcoming civil jury trials were postponed until further notice. On March 22, New York restricted the filing of new actions in its trial courts to essential matters, which primarily include Mental Hygiene Law applications, emergency applications in guardianship matters, temporary orders of protection, emergency applications related to the coronavirus, emergency Election Law Applications and “any other matter that the court deems essential.” The courts have offered little guidance as to what other matters might properly be considered essential, other than to note that this “catch-all provision will be interpreted narrowly as it is designed to address the very rare cases where individual facts necessitate an immediate hearing notwithstanding current public health concerns.”
On April 8, New York’s Chief Administrative Judge announced that, effective April 13, trial courts would begin deciding fully submitted motions and utilizing videoconference technology to conference pending cases and resolve ad hoc discovery disputes and other matters not requiring written submissions. Thus far, those new measures have been carried out primarily through temporary part rules issued by individual judges, and we expect that remote court proceedings will continue to be governed primarily by individual part rules moving forward.
New York trial courts started accepting new motions, responsive papers to previously filed motions and other written submissions in pending cases on May 4. The Chief Administrate Judge may designate additional documents appropriate for filing in pending cases. The trial courts have also launched an Electronic Document Delivery System (EDDS), which may be used to file documents in pending cases where electronic filing was previously unavailable. The filing of new nonessential actions, however, remains limited.
Although courts in several upstate counties have resumed in-person operations and started accepting new civil actions for filing on May 18 and 20, court operations in the New York metropolitan area.
May 22 Update: Effective May 25, New York is permitting new lawsuits to be filed electronically statewide, thereby reopening the courts to new “nonessential” matters for the first time since the slowdown in court operations due to the pandemic.
Federal courthouses in the Southern and Eastern Districts of New York remain physically open, but with limited operations and access. In-person matters are largely restricted to applications for temporary restraining orders, injunctions, and other urgent civil and criminal matters.
Both courts are continuing to permit the filing of all new actions electronically through PACER. All jury trials have been delayed—until June 1 in the Southern District and June 15 in the Eastern—but the chief judges in both districts have authorized judges to continue with hearings, conferences, and bench trials at their discretion, and have encouraged the use of telephone or video conference technology in that regard. Individual judges are issuing their own rules regarding remote court proceedings. For example, several judges have prohibited paper filings or courtesy copies, directed that conferences be held by telephone and instructed parties to submit urgent matters via email.
Los Angeles and Orange County
Los Angeles and Orange County Superior Courts have been closed to the public since mid-March, except for essential time-sensitive matters and matters pertaining to the health, safety and security of the community. The Los Angeles Superior Court has defined essential time-sensitive matters to include temporary restraining orders, ex parte proceedings, certain probate and criminal matters, emergency writs challenging COVID-19 emergency measures and writs of habeas corpus challenging medical quarantines. Meanwhile, the Orange County Superior Court has defined “time-sensitive matters, or matters pertaining to the health and safety of the community,” to include temporary restraining orders, emergency gun violence restraining orders, law enforcement emergency requests, emergency requests to stay a lockout date and emergency civil temporary injunctions.
As of April 6, all state courts in California were required to conduct judicial proceedings remotely, through the use of video, audio and telephonic means. At present and unless otherwise amended, these rules will remain in effect until 90 days after Gov. Gavin Newsom declares that the state of emergency has been lifted.
As of May 13, the Los Angeles Superior Court has ordered all nonessential matters originally scheduled through June 10 postponed, but has directed that courthouses will reopen on June 22 and that nonessential matters will be rescheduled for after that date. The court plans to roll out “virtual jury service” in the near future, though it is not clear at present what that will entail.
In Orange County, meanwhile, all civil trials, hearings and proceedings were postponed for at least 60 days, as of March 23, with the exception of time-sensitive matters, such as restraining orders, and urgent dependency, probate and family matters. Current guidance suggests that postponed civil trials will be rescheduled approximately 25 weeks from the original scheduled trial date, although courts in the county may conduct trials prior to then upon a finding of “good cause shown” or through the use of remote technology, when appropriate. In the meantime, urgent civil matters may still be conducted telephonically.
All courthouses in the Central District of California are closed to the public, except for limited in-person hearings being conducted in criminal matters. As of March 23, the court postponed all civil hearings except for emergency time-sensitive matters, such as requests for temporary restraining orders and preliminary injunctions. As of April 13, the court has permitted hearings on emergency civil matters telephonically and by videoconference. Telephonic and videoconference appearances in nonemergency civil matters may also proceed at the presiding judge’s discretion. All filing deadlines appear to remain in place unless otherwise ordered.
The Cook County Circuit Court is accepting all filings in both pending and new matters. On May 1, the Chief Judge of the Cook County Circuit Court issued an administrative order continuing all matters in all districts and divisions for a period of at least 30 days from their then-scheduled dates. Judges are available in each district and division to hear oral argument on emergency matters only, as determined by the presiding judges. Emergency matters in civil cases may be heard and conducted either in person or via telephone or videoconference.
More specific rules are being issued at the district and division levels. For example, on May 5, the Chancery Division issued an administrative order continuing all General Chancery matters through May 31. Parties are also being directed to notice all newly filed nonemergency motions for a date after May 31. The Chancery Division is conducting oral argument via videoconference and telephone in emergency matters only, defined as matters involving “a sudden and unforeseen circumstance that may cause injury, loss of life, or damage to property that requires an urgent response and remedial action.”
As with most other federal district courts, the Northern District of Illinois is continuing to accept all filings electronically, and its courthouses remain open, subject to limitations on visitors. The court has issued several orders postponing in-person matters and extending other case deadlines. The court directed that all bench trials, civil hearings and in-person settlement conferences scheduled for prior to May 29 would be rescheduled for after June 1, and that all civil jury trials scheduled to commence by June 26 would be rescheduled for after June 29. The court has also extended all deadlines—“whether set by the court or by the Rules of Civil Procedure or Local Rules” (subject to certain exceptions, such as deadlines for post-trial motions, motions for relief from a final judgment and notices of appeal)—for a total of 77 days. Judges have been accorded the discretion to vary from this extension.
To ensure that cases otherwise proceed, the court has ordered parties “in any civil case where no docket entry or order has been posted by the assigned judge since March 16” to submit joint status reports by May 18 addressing, among other things, the status of discovery, unresolved motions and settlement efforts.
In Washington, D.C., the Superior Court is continuing to accept the filing of new actions and certain submissions in pending actions. Although initially only emergency matters were being forwarded to judges for review and telephonic argument, the court indicated on May 14 that the Civil Division would expand the types of cases in which it would conduct telephonic hearings. Judges are also continuing to issue decisions on pending motions and other matters that can be decided without a hearing. Although several jury trials “in progress” continued to proceed as scheduled, the court has postponed upcoming civil trials and other “nonpriority” matters that were scheduled prior to June 19.
The U.S. District Court for the District of Columbia remains open with limited operations to support essential functions to ensure public safety, health and welfare. Electronic filings are still being accepted for all matters. The court has postponed all jury trials that were scheduled to commence prior to June 11. It also has postponed all nonjury proceedings, including bench trials, hearings, settlement conferences and other court appearances, that were scheduled for prior to June 1, unless the presiding judge orders that the matter proceed by telephone or videoconference.
Even in cases that do not qualify as essential or emergency, or where proceedings that ordinarily would require in-person appearances have been postponed or canceled, litigants may be able to proceed with discovery matters.
By and large, courts have encouraged counsel to work together to proceed with discovery where feasible and to agree on alternate arrangements where the pandemic has hampered progress. For example, on May 1, the Chief Judge of the Cook County Circuit Court confirmed that in all civil matters, discovery should continue as scheduled, except for oral depositions, which parties are being encouraged to adjourn by stipulation. In New York, similarly, state court judges are starting to schedule remote conferences in nonessential cases with the aim of moving pending cases toward resolution. The Chief Administrative Judge in New York has made clear, however, that where parties or their counsel are unable to meet discovery deadlines “for reasons related to the coronavirus health emergency,” they should use best efforts to postpone discovery by agreement.
Where parties are able to agree on methods for proceeding with discovery during this period, several options are available. For example, third-party vendors are offering video deposition services through Zoom, Webex and other videoconference platforms. These platforms allow for the deponent, counsel and party representatives to be visible to one another throughout the deposition and facilitate the introduction of exhibits using screen-sharing functionality or through secure virtual “exhibit rooms” that are hosted by the vendor and that keep exhibits private until marked by the examining attorney.
Where parties are unable to reach agreement on remote discovery procedures or postponement of discovery deadlines, however, judicial intervention in all but the most time-sensitive matters may need to wait, depending on the court.
For both ongoing litigation and pre-litigation matters, limited court access and operations may present a unique opportunity to resolve disputes through mediation, depending on case complexity, comfort level and cost considerations. Both court-administered mediation programs and private associations such as JAMS and the American Arbitration Association (AAA) have taken steps to train neutrals in conducting mediations using videoconference software.
Platforms such as Zoom and Webex can effectively simulate a multiroom mediation session by allowing mediators or their case managers to create several virtual breakout rooms in which mediators may communicate with each party and their counsel separately. Mediators also have the ability to create separate breakout rooms to address counsel only, as may be necessary. As with video depositions, the platforms allow for documents to be exchanged with screen-sharing functionality.
Although procedures differ somewhat for mediation programs in federal courts, most of those programs are offering some form of remote mediation. For example, the Southern District of New York’s program tasks mediators and the parties with arranging for videoconference sessions. In the Central District of California, mediators have been granted the authority “to excuse a party, a party’s representative, or an attorney from in-person attendance at a mediation,” and to conduct sessions by videoconference or telephone under the court’s ADR program.
Arbitration also may be an appealing option for filing claims that would ordinarily be filed in state court but that may not be filed due to prohibitions on new nonessential or nonemergency matters. There are currently no barriers to commencing arbitration with either JAMS or AAA, both of which are accepting electronic filing of demands for arbitration and counterclaims. Although JAMS formerly required arbitration to be commenced by in-person or mail-in paper filings, the organization has suspended that requirement. Both organizations have postponed in-person arbitration hearings, but are offering to conduct remote hearings in the event all parties agree to proceed remotely. JAMS, in particular, has identified Zoom as the preferred videoconference platform, but has also offered to accommodate parties that prefer to use Skype, GoToMeeting, Webex or LoopUp.
Notwithstanding these various options for advancing pending litigation or resolving disputes through ADR, parties considering whether to commence legal action may decide that they would rather wait until the health crisis subsides. Those parties may find relief in recently issued state executive orders, many of which have tolled statutes of limitations during the pandemic. These orders vary by state—and, in some cases, by county. We summarize here recently implemented tolling orders in our key markets, and encourage you to contact us with questions you may have on the tolling of any applicable statutes of limitations in these or other jurisdictions.
On March 20, Gov. Andrew Cuomo issued Executive Order No. 202.8, directing that “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, . . . or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from [March 20, 2020] until April 19, 2020.” The governor’s subsequent Executive Order No. 202.28 extended that tolling period until June 6, 2020. Some observers have noted that these orders have the effect of stopping the clock on all pending statutes of limitations regardless of expiration date, while others have opined that the orders apply only to periods set to expire during the pendency of the orders.
Initially, California handled tolling at the local level, with the state’s Superior Courts issuing separate orders addressing when and how the time for filing new actions in those courts would be extended. The Los Angeles and Orange County Superior Courts, for example, designated certain dates as “holidays” under California Code of Civil Procedure Secs. 12 and 12a. By this method, if a statute of limitations was set to expire on any of these filing holidays, the period would be automatically extended to the next day that is not designated a filing holiday. The Los Angeles Superior Court initially designated March 17 through March 19, 2020, as filing holidays and later extended the holiday period to encompass the period from April 17 through June 10, 2020. Orange County Superior Court, meanwhile, designated March 17 through May 22, 2020, as filing holidays.
Recently, the California Judicial Council enacted Emergency Rule 9, tolling the statute of limitations for all civil actions under California state law from April 6, 2020, until 90 days after Gov. Newsom lifts the current state of emergency. It is not entirely clear whether this emergency tolling rule is cumulative of or fully replaces the prior extensions implemented through local filing holidays.
Illinois appears not to have taken steps to toll any applicable statutes of limitations as a result of COVID-19. While state and federal courts in Illinois have issued orders rescheduling hearings and trials and extending various deadlines, those orders are silent as to tolling.
In Washington, D.C., all statutes of limitations that were set to expire between March 18 and May 15, 2020, were tolled for the duration of that period. On May 15, the Superior Court extended the tolling of all statutes of limitation “during the period of emergency,” unless otherwise ordered by the court. At present, it is not clear how long that tolling period will last.
For information on the business impacts of COVID-19, please visit our COVID-19 Resource Center, which we continue to update as the situation evolves. If you have questions about COVID-19’s impact on your business, please reach out to your Loeb relationship partner or email us directly at COVID19@loeb.com.