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Resources for Plaintiffs’ Lawyers Facing Deposition Obstruction During COVID-19

The coronavirus pandemic has caused massive changes to the civil justice system, disrupting court operations and making many routine litigation activities fraught or impossible. Corporate defendants are taking advantage of these changes, attempting to delay or completely stall litigation. Public Justice is compiling court orders and briefs for plaintiffs’ counsel from around the country to help the trial bar overcome these tactics.

Have a resource you’d like to add to this list? Contact Staff Attorney Stevie Glaberson at sglaberson@publicjustice.net. Please use the subject heading “COVID-Delays” and tell Stevie a little about what you’re providing in the body of your email.

The Marshall Project has compiled a helpful infographic about court changes and closures across the country here, and the National Center for State Courts has links to state court pages here.

Special thanks to those who have already contributed resources, including Hagens Berman Sobol Shapiro LLP.

Orders, Statutes, and Rules

General

Alabama:

Order Approving Remote Administration of Oaths to Witnesses in Hearings and Deposition (Issued March 24, 2020) (permits court reporters to administer oaths by audio-visual technology; suspends all contrary rules)

Administrative Order No. 2 Pertaining to Suspension of In-Court Proceedings (Issued March 15, 2020) (clarifies that earlier court closure order applies only to in-court proceedings and should not affect out-of-court activities in civil cases such as depositions)

Administrative Order Pertaining to Suspension of In-Court Proceedings (Issued March 13, 2020) (suspends in-court proceedings until April 16, 2020)

California:

Emergency Rules of the California Rules of Court (adopted April 6, 2020) (among many other things, provides at Emergency Rule 11 that 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”)

California Statewide Emergency Order (issued March 30, 2020) (extending certain deadlines in criminal cases and finding good cause to “support courts in making use of available technology, when possible, to conduct judicial proceedings and court operations remotely, suspend any rule in the California Rules of Court to the extent such rule would prevent a court from using technology to conduct judicial proceedings and court operations remotely, in order to protect the health and safety of the public, court personnel, judicial officers, litigants, and witnesses”)

Governor of California Executive Order (Issued March 27, 2020) (Empowers Judicial Council and the Chief Justice of the California Supreme Court to take necessary action to be able to conduct business and continue to operate during pandemic; allows the Judicial Branch to permit remote depositions in every case and electronic service of process; leaves to Judicial Branch the discretion to make any modifications to practice or procedure it deems necessary to continue conducting business of the courts)

Colorado:

Colorado Order Extending Prohibition on Jury Calls (March 20, 2020) (extends prohibition on jury calls through May 15, 2020)

Connecticut:

Connecticut Supreme Court Order Extending Briefing Deadlines (March 19, 2020) (extends all supreme and appellate court briefing deadlines by 30 days sua sponte)

Delaware:

Delaware Statewide Judiciary Restricted Operations and the Temporary Suspension of Statutes of Limitations, Filing Deadlines and Notarization Requirements in All Courts (Issued March 22, 2020) (suspends requirement for sworn declarations, verifications, certificates, statements, oaths, or affidavits in court filings)

Florida:

Supreme Court of Florida Order Extending Emergency Measures, Including Remote Administration of Oaths (March 24, 2020) (Extends effects of prior administrative orders through April 17, 2020 (including suspension of any rules that would stand in the way of allowing oaths and depositions to be conducted remotely, so long as the deponent can be both seen and heard via video; suspension of grand jury and jury selection proceedings, jury trials, and direction for courts to cancel or postpone all but essential proceedings, etc.))

Supreme Court of Florida COVID-19 Administrative Order (Issued March 17, 2020) (Reduces courts to essential proceedings, but empowers chief judges of Florida courts to determine that other proceedings can go forward if they can be effectively conducted remotely without the necessity of in-person court appearances)

Supreme Court of Florida COVID-19 Emergency Procedures for Administering of Oaths via Remote Audio-Video Communication Equipment (Issued March 18, 2020) (provides for oaths to be administered remotely and suspends any Florida rules, orders, or opinions that might be read to limit or prohibit the use of audio-video equipment to do so)

Georgia:

GA Executive Order Allowing Remote Notarization and Attestation (April 9, 2020) (Suspends Georgia laws requiring that notarial acts be performed in physical presence of notary public. Provides that such acts may be performed via real-time communications technology as long as certain conditions are met, including that the notary public is located in the state of Georgia and is a licensed Georgia attorney or supervised one. Signers must present satisfactory evidence of identity via video and transmit copies of the document to the notary public on the same date. Also provides that any requirement that a document be signed/executed/attested/etc. in the physical presence of another may be satisfied by real-time remote means)

GA Supreme Court Order Extending Declaration of Statewide Judicial Emergency (April 6, 2020) (Extends Georgia Order Declaring Statewide Emergency from March 14, 2020 to May 13, 2020. With regards to matters not deemed essential functions, encourages courts and litigants to proceed to the extent feasible consistent with public health guidance, for example through the use of teleconference and videoconferences.)

Indiana:

Indiana Supreme Court Administrative Order (Issued March 16, 2020) (Provides for Indiana courts to use continuity of operations plans, permit appearances by telephone or video, and limit courtroom spectators)

Louisiana

Supreme Court of Louisiana Order Extending Closure of Louisiana Courts (April 22, 2020) (Extends April 6, 2020, order directing judges to conduct proceedings by remote conferencing to the extent possible. Provides that no civil or criminal jury trial shall commence in any state court before June 30, 2020)

Supreme Court of Louisiana Order Requiring Closure of Louisiana Courts (April 6, 2020) (Provides that all civil and criminal jury trials shall be continued to no earlier than May 4, 2020. Until that day, courts may only conduct in-person proceedings to address emergency matters that cannot be resolved virtually. Details those criminal and civil matters that constitute emergencies)

Maine:

Maine Supreme Court Executive Order on Remote Depositions and Oaths (March 25, 2020) (Provides that any person before whom a deposition is to be taken may administer oaths and take testimony remotely as long as that person can both hear and see the deponent via videoconference or other technology)

Maryland:

Maryland Court of Appeals Administrative Order Providing for Remote Proceedings (Issued June 18, 2018) (Provides for conduct of evidentiary and non-evidentiary proceedings by remote means)

Maryland Court of Appeals COVID-19 Administrative Order (Issued March 16, 2020) (Restricts courts to “emergency operations” through April 3, 2020)

Massachusetts:

Massachusetts Supreme Court Order for Administering Oaths at Depositions (Issued March 20, 2020) (provides for remote administration of oaths at depositions, so long as officer can both see and hear the deponent via audio-video communication equipment or technology)

Massachusetts Supreme Court Order Re Electronic Signatures of Judges and Clerks (Issued March 26, 2020) (extends ability to electronically sign all filings and orders to all courts and case types, to extend not already authorized)

Minnesota:

§ 358.645 Remote Online Notary Public (defines “appear,” “personally appear,” or “in the presence of” to include “interacting with another individual by means of communication technology” and allows for remote notarization)

Mississippi:

Supreme Court of Mississippi Emergency Order Related To Coronavirus (COVID-19) (March 20, 2020) (provides that any person qualified to administer an oath in the State of  Mississippi  may  swear  a  witness  remotely  by  audio-video communication technology  from  a  location  within  the  State  of  Mississippi,  provided  they  can  positively identify the witness)

Missouri:

MO Executive Order Suspending In-Person Requirement for Notarization (April 6, 2020) (Suspends the requirement of personal appearance before a notary public to the extent that any notarial act is authorized to be performed utilizing audio-video technology provided that certain conditions are met.)

New Jersey:

Supreme Court of New Jersey Omnibus Order (March 27, 2020) Extends prior orders through April 26; jury trials, landlord/tenant proceedings, and Municipal Court proceedings are to remain suspended through this date. Deadlines for affidavits in medical or professional practice cases and some types of discovery are also now extended through April 26. Time periods for dismissal of cases for lack of prosecution will be tolled from March 16 through April 26. Depositions should be conducted, and oaths administered, remotely using videoconferencing wherever possible; court reporters permitted to administer and accept oaths remotely.

Pennsylvania:

Supreme Court of Pennsylvania Western District Extending Prior Orders (April 1, 2020) (Extends prior orders through April 30, 2020: Pennsylvania courts remain closed to the public. The use of teleconference and videoconference technology to conduct court proceedings remains authorized and encouraged. Alternate means of filing writs for tolling statutes of limitations are to remain available, and time limitations and deadlines for trials and filings are extended through the end of April. Prohibition on eviction proceedings remains in place)

Supreme Court of Pennsylvania Western District Order (Issued March 18, 2020) (Provides for Pennsylvania courts to be closed to the public from March 19-April 3, 2020)

Texas:

Harris County 151st Civil District Ct Order on Videoconference Depositions (March 24, 2020) (Provides that all oral depositions may be taken, and oaths administered, remotely via videoconference. Deposition notice must specify technology to be used. Party noticing deposition must ensure witnesses have access to it, and refusal by one party to agree to a remote deposition shall not stay said deposition. No motion to quash based on wish to be physically present will be granted)

Harris County 129th Civil District Ct. Order on Videoconference Depositions (March 30, 2020) (Similar to 151st District Order in allowing all depositions to proceed remotely, with similar requirements. Requires that a copy of this order be attached to any remote deposition notice)

Texas Supreme Court First Emergency Order re Covid 19 (Issued March 13, 2020) (allows all Texas courts to suspend all deadlines and procedures for specified time, permit any hearing, deposition, or other proceeding to occur remotely, consider as evidence sworn statements or testimony taken remotely, extend statutes of limitation, and more; effective March 13-May 8, 2020)

Washington:

Supreme Court of Washington Revised and Extended Order Regarding Court Operations (April 13, 2020) (suspends all civil jury trials and continues all non-emergency civil matters until after May 4, 2020 with some exceptions. Provides that all emergency civil matters that cannot be continued until after May 4, 2020 must be heard by telephone, video, or other means that do not require in-person attendance, unless impossible. Courts will continue to hear emergency civil protection and restraining order matters)

Supreme Court of Washington Order Closing Temple of Justice (Issued March 16, 2020) (closes Temple of Justice to the public until May 5, 2020)

West Virginia:

Supreme Court of Appeals of West Virginia Temporary Order Re Civil Litigation and Remote Depositions (Issued April 24, 2020) (Among other things, makes provisions for written discovery to be conducted; Permits depositions to be taken remotely and clarifies W.Va. R. Civ. P. 28 and 29 to expressly permit remote attendance by court reporters. Suspends requirement that stipulation or court order are required for remote deposition, but requires parties to meet and confer remotely prior to serving notice of remote deposition. Counsel seeking to take remote deposition must confirm that prospective deponents have access to appropriate technology enabling them to be deposed remotely)

Supreme Court of Appeals of West Virginia Judicial Emergency Order, Amended Re Remote Proceedings and Public Access (Issued April 22, 2020) (Orders that all in-person proceedings and deadlines between March 23 and May 15 be stayed through May 18, including jury trials. Stays deadlines in court rules, scheduling orders, and administrative rules through May 18, and extends statutes of limitations set to expire between March 23 and May 15 to May 18. Proceedings, hearings, or bench trials can occur if they can be done via telephone or videoconference and with the mutual consent of the parties. Emergency proceedings required to protect public safety may go forward but should limit person-to-person contact whenever possible. Courts should develop plans to ensure public access to the judicial system while most operations are being performed remotely)

Wisconsin:

Supreme Court of Wisconsin Order on Remote Oaths and Depositions (March 25, 2020) (Provides that court reporters may administer oaths remotely via videoconference so long as the reporter can both see and hear the individual taking the oath. Parties retain the ability to stipulate, in writing, modifications to deposition procedures. Specifies that the “remote administration of an oath at a deposition via audio-visual communications technology pursuant to this order shall constitute the administration of an oath ‘before’ a court reporter” under Wisconsin law)

Supreme Court of Wisconsin Order on Remote Hearings during COVID-19 Pandemic (issued March 22, 2020) (with some exceptions, requires all judges, court commissioners and court clerks to use available technologies including e-mail, teleconferencing, and  video conferencing in lieu of in-person courtroom appearances; suspends all court rules that would impede such practice)

Wyoming:

Wyoming Supreme Court Order on Remote Communications, Electronic Filing, and Wills (March 26, 2020) (WY Rules of Civil Procedure already allow parties to stipulate to have depositions performed remotely or before a court reporter. This order shifts the burden to non-stipulating parties to show that their failure to stipulate to remote depositions was made in good faith. Page limits for electronic filings are currently waived, and individual court clerks may waive requirement that e-filed documents must be followed by a physical copy (other than initiating pleadings))

Federal:

Ninth Circuit

U.S. Courts for the District of Montana Administrative Order 20-18 Re: Public Access and Court Operations (Issued April 10, 2020) Extends prior orders, keeping federal courthouses closed through May 29. All jury trials and related pretrial conferences through May 29 are vacated and will be reset. All other pending deadlines remain in place. Judges may continue to hold non-jury proceedings on a case-by-case basis. Use of video or telephonic communication for proceedings is greatly encouraged; alternative means of electronic filing will be set up for self-represented litigants who otherwise do not have access. Directs Clerk of Court to “promptly establish means of remote public access to court proceedings and post instructions for public access on the Court’s website.” While the grand jury empaneled on September 25, 2019 will convene as scheduled on May 6, all other grand jury proceedings scheduled through May 29 are vacated.

Western District of Washington Order 07-20 Extending the Modified Court Operations under COVID (April 13, 2020) (Extends Western District of Washington General Orders 02-20 and 03-20 another 30 days. All grand jury proceedings, as well as civil and criminal in-person hearings and trial dates in Seattle and Tacoma courthouses scheduled to occur before July 1, 2020 are continued pending further order of the Court)

Western District of Washington Order 02-20 Closing Seattle and Tacoma Courthouses (March 17, 2020) (Orders that all criminal initial appearances and detention hearings will be conducted via video or telephone conference with the defendant’s permission, unless directed otherwise by the Court. All criminal and civil hearings and trial dates in Seattle and Tacoma courthouses scheduled to occur before June 1, 2020 are continued pending further order of the Court)

Case-specific

State courts

Florida:

Klein v. Transguard Insurance Order Denying Motion for Protective Order (Sarasota Cty. Circuit Ct. March 31, 2020) (denying motion to delay deposition until such time as deponent can have attorney physically present, permitting deposition to go forward by video)

Illinois:

In re: Asbestos Litigation – Cook County, Illinois Supplemental Case Management Order re COVID-19 Emergency Measures (Issued March 16, 2020) (Provides for all depositions of “high or higher risk” parties or witnesses to be conducted remotely; waives physical oath-taking and stenographer in-person presence requirements of Illinois rules; but extends all case management deadlines by 60 days)

In re: Asbestos Litigation – Madison County, Illinois Supplemental Case Management Order re COVID-19 Emergency Measures (Issued March 18, 2020) (Provides for all depositions of “high or higher risk” parties or witnesses to be conducted remotely; waives physical oath-taking and stenographer in-person presence requirements of Illinois rules; provides for remote compliance with previously-set deadlines and procedures)

Missouri:

Schulte v. Park Reserve, LLC Discovery Order (Filed April 14, 2020) (on page 12 of pdf, court addresses defendant’s objection to taking of remote depositions during pandemic: “strongly urges all counsel during this time, to explore alternatives, that under different circumstances, would be unimaginable (remote depositions via telephone or videoconferencing).”)

New Jersey:

New Jersey Asbestos Cases Order (Issued March 13, 2020) (Orders plaintiffs’ counsel to make plaintiffs available for depositions by telephone or video and directs that any “expert, corporate representative or fact witness” that must be deposed “should also have video or telephonic opportunity made available,” but advises parties to “ascertain the necessity” of completing such depositions given the suspension of jury trials)

Washington:

Bard Monsanto Order Partially Granting Plaintiffs’ Motion For Video Depositions (March 25, 2020) (provides that all fact witness depositions in case shall go forward by utilizing telephone, video, or other means that does not require in person attendance; excludes plaintiffs, experts, and treating medical providers and sets future date by which to reconsider use of video depositions for these witnesses)

Federal Courts:

First Circuit

Second Circuit

In re Restasis Antitrust Litigation (EDNY March 26, 2020) (in lieu of in-person conference, lays out court’s concerns regarding proposed settlement and directs parties to submit updated papers to address said concerns; does not set deadline for submission, stating “in light of the current health crisis, it is simply not prudent to fix dates for the next stages of settlement approval, including a fairness hearing.”)

Sinceno v. Riverside Church (SDNY March 18, 2020) (provides that all depositions may be taken by telephone, videoconference, or other remote means, and recorded by any reliable audio or audiovisual method, and encourages remote conferencing by attorneys to move the matter forward)

In re Keurig Order re Remote Depositions (SDNY March 16, 2020) (provides that all depositions may be taken via telephone, videoconference, or other remote means; extends all unexpired deadlines for a period of 30 days)

Third Circuit

Fourth Circuit

Hecker v. Western Tidewater Regional Jail Authority, et al. (E.D. Va., Mar. 23, 2020) (denying motion to quash deposition notices, finding depositions can be taken remotely by video)

Fifth Circuit

Infernal Technology v. Sony (E.D. Tx. March 27, 2020) (denying a motion to extend discovery beyond June due to COVID-19 in patent case, without prejudice)

Thomas v. Wallace (M.D. La. March 18, 2020) (denying Defendants’ Motion to Compel Appearance of Plaintiff for Deposition in Louisiana and approving conducting Plaintiff’s deposition by telephone or videoconference, finding extreme hardship with respect to travel for Plaintiff’s deposition given Plaintiff’s economic situation and the coronavirus outbreak)

Sixth Circuit

In re Duramax Diesel Litigation – Order Denying Motion for Stay of Discovery Dates but Providing Extension (E.D. Mich. April 16, 2020) Denies defendants’ unopposed motion to stay dates for discovery until at least May 15, noting that “many sectors of society are being forced to adapt,” and instead extends the deadlines for discovery by four weeks in light of logistical challenges.

In re Duramax Diesel Litigation (E.D. Mich. April 7, 2020) (rejecting parties’ stipulation attempting to extend discovery deadlines in light of COVID-19, finding that “[n]either party has explained that they have attempted to use all available means, including video and telephone conferencing and electronic and telephonic communication, to complete discovery, nor have they provided any specific difficulties they have encountered that prevents them from proceeding with the case.”)

Seventh Circuit

Lipsey v. Walmart, Inc. (N.D. Ill. Mar. 20, 2020) (available at 2020 WL 1322850) (orders parties to meet and confer to determine which medical provider depositions should go forward; institutes COVID-related protocol requiring proponent of deposition to report to court information regarding proposed deponent, including anticipated involvement in preparation or response to COVID-related public health efforts, and relative importance to case)

DeVine v. XPO Logistics Freight (N.D. Ill. Mar. 17, 2020) (observing that “the medical community is very, very busy right now,” orders parties to meet and confer to determine whether outstanding medical provider depositions are in fact needed; institutes COVID-related protocol requiring proponent of deposition to report to court information regarding proposed deponent, including anticipated involvement in preparation or response to COVID-related public health efforts, and relative importance to case)

County of Cook v. Bank of America Corp. et al. (N.D. Ill. March 12, 2020) (transcript of proceedings before Magistrate Judge Sunil R. Harjani in which judge favors use of video depositions over cancellations)

Eighth Circuit

Wachovia Bank Judges Letter (D. Minn. March 24, 2020) (rejecting party request to delay motion hearing, explaining why judge “simply ha[s] to keep [his] civil motions calendar moving,” and why telephonic hearings are workable)

Automatic Equip. Mfg. Co. v. Danko Mfg., LLC (D. Neb. Mar. 12, 2020) (offering to allow parties to hold traditionally in-person Markman hearing in patent infringement case by videoconference). (available at 2020 WL 1182006)

In re: RFC and ResCap Liquidating Trust Action (D. Minn. Mar. 13, 2020) (finding good cause and compelling circumstances to allow remote testimony to complete bench trial) (available at 2020 WL 1280931)

Ninth Circuit

Tenth Circuit

Eleventh Circuit

In re Zantac MDL (S.D. Fla March 20, 2020) (recognizes need to balance interests in moving case forward and ensuring that court has full information in making any decisions; in absence of permanent leadership, finds that “it is in the best interests of the case to allow the Initial Census Team, Practices and Procedures Team and Interim Defense Leadership Team to continue their work and so authorizes them to do so”)

D.C. Circuit

Sample Briefs

In re JUUL Labs Motion for Alternative Service (Filed April 22, 2020) (arguing that, in light of COVID-19 crisis, court should enter an order stating that, for the purposes of this MDL proceeding, the personal service requirements set forth in F.R.C.P. 45 can be satisfied by delivering subpoenas via certified mail until September 1, 2020)

National Prescription Opiates Litigation Plaintiffs Opposition to Defendants Motion to Extend all Deadlines by 60 Days (filed March 25, 2020) (Argues against 60-day extension of all deadlines by emphasizing (1) national importance of case, (2) COVID-related challenges fall equally on both parties, not just defendants, (3) defendants’ failure to put forward explanations why COVID-19 interferes with their ability to meet deadlines, and (4) adequacy of modern technology to facilitate remote discovery, including depositions)

Corker v. Costco Plaintiffs’ Opposition To Gold Coffee Roaster, Inc.’s Motion for Protective Order to Limit Scope and to Postpone 30(B)(6) Deposition (filed March 25, 2020) (argues for remote deposition, responding to argument that remote deposition would be prejudicial because party would not have benefit of physical presence of attorney)

Other

Sample Remote Deposition Protocol Order (and Model Notice of Remote Deposition and Remote Witness Declaration; provided by Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham, & Jacob PLLC)

Jones Ward Letter to Opposing Counsel (March 31, 2020) (uses resources from this page to argue in favor of conducting depositions by video)

Texas Changes to Court Operations Webinar Presentation by Watts Guerra LLP (March 27, 2020) (Collects Texas-specific court orders and information, provides helpful tips for law practice during pandemic)

“Continuing to Advance Discovery Through Remote Depositions During COVID-19 Pandemic” by Bailey & Glasser (includes sample joint stipulation for protocol for conducting remote depositions)