There seems to be no limit to the impact of Covid-19, as the disease caused by the new coronavirus is known. Litigation is certainly no exception, as courts across the country have begun issuing orders to address whether litigants and their counsel need to appear in court.
But the orders range from detailed to vague and confusing. And some orders are specific only to cases before the issuing judge. Another differentiator is where to find these potential changes to the court’s operations.
The Just-Stay-Home Approach
Chief Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington issued a March 6 General Order outlining that most in-court civil and criminal proceedings scheduled in Seattle and Tacoma are continued pending further court order. This is the only court order reviewed to date that has included specific citations to recommendations made by the CDC and local public health agencies.
Also on March 6, the U.S. Court of Appeals for the Ninth Circuit announced it canceled all en banc hearings and non-case-related meetings for the week of March 9. The court said that three-judge panels have discretion to cancel more proceedings. Unless otherwise stated, all oral arguments are proceeding, but counsel may seek leave to appear remotely.
Split Approach in Texas?
Judge J. Campbell Barker in the U.S. District Court for the Eastern District of Texas issued two identical orders (for civil and criminal matters) stating that if a “hearing, trial, or deposition may cause a person to travel or act contrary to official guidance or precautions regarding the COVID-19 virus,” the parties or counsel shall request to postpone the event or conduct it via videoconference. If the parties can’t agree, they can seek the court’s assistance. There are no links to any health guidance in the orders. The orders apply to all cases before Judge Barker.
Chief Judge Rodney Gilstrap, however, issued a March 3 Standing Order with a bit more detail. His order lays out several circumstances under which a party or counsel should notify the other side to determine if a videoconference or delay is most appropriate in lieu of proceeding with a noticed hearing, trial, or deposition.
The circumstances include a reasonable suspicion that the appearance may cause a party, counsel, or witness to:
—conduct any travel in or out of the U.S. that is prohibited by Presidential Proclamation, by regulations imposed by the departments of State or Health and Human Services, or by U.S. law;
—travel to or from a country subject to certain travel advisories;
—conduct travel or actions contrary to CDC guidance or guidance of foreign or domestic health authorities;
—come into contact with someone who may be infected with Covid-19 or who has been in contact with someone in the past two weeks who may be infected; or
—attend a hearing, trial, or deposition if the individual may be infected or has been in contact with someone in the past two weeks who may be infected.
If notice is given under any of these circumstances, the parties then meet and confer about how best to proceed.
Despite being the Chief Judge, Gilstrap’s order applies only to his assigned cases, as well as those referred to a magistrate.
Restrictions for SDNY Visitors
In the Southern District of New York, Chief Judge Colleen McMahon issued a March 9 revised notice and standing order about visitor restrictions to the courthouse. After recognizing that the CDC has “noted that the best way to prevent illness is to avoid being exposed to this virus,” the announcement proscribes admission for the following:
—people who have traveled to specific countries;
—people who live or have been in close contact with someone who traveled to the specified countries;
—people who have been asked to self-quarantine by a doctor, hospital, or health agency;
—people with fever, cough or shortness of breath (a category that wasn’t in the original March 9 notice); and
—people diagnosed with, or who have had contact with anyone diagnosed with, Covid-19.
New Hampshire Is Accommodating
On March 9, the U.S. District Court for the District of New Hampshire posted a notice that the court will make reasonable accommodations as needed for those scheduled to appear in court who are experiencing flu-like symptoms, have a fever, or are coughing or sneezing. It advises those who recently traveled “from an area with widespread or ongoing community spread of COVID-19" and who have symptoms to reach out to a health care provider. Links are provided to both the CDC’s web site and to the New Hampshire Department of Health and Human Services.
Appear by Phone
Chancellor Andre G. Bouchard of the Delaware Court of Chancery issued a March 6 Standing Order stating it will conduct conferences and hearings by phone when “practicable and efficient to do so.” Notice may be given to the opposing side if someone is to appear at a trial or hearing that isn’t practicable to conduct over the phone, and the court may require the presence of a person who may be infected with Covid-19 or has been in contact in the past two weeks with a person who may be infected. The parties will then meet and confer about how best to proceed.
In Session, as Usual
Then there are some courts, like the U.S. District Court for the Eastern District of Tennessee, which are monitoring the situation, but have made no changes to current operating procedures.
The same is true for the Maryland judiciary, at least as of March 6.
Location, Location, Location
The location of where the respective orders can be found is also noteworthy. A few courts prominently include their notices on their main web page. The Court of Chancery added a red banner at the top of its home page to alert visitors: “The Court of Chancery has issued a Standing Order Concerning COVID-19 Precautionary Measures. New Standing Order.” Likewise, the Southern District of New York’s announcement is found on a red banner at the bottom of its home page: “Notice to the Bar: Important – SDNY Restricts Courthouse Access [Revised].”
The federal court in Washington also has links to both its press release and General Order on its home page, as does the New Hampshire federal court.
But the Texas orders are listed on the information pages for Judges Barker and Gilstrap and are not located in a more prominent position on the website.
If you are looking into whether a court has issued any guidance or orders, you may need to check several places: the court’s home page, news and announcements, general standing orders or administrative orders pages, and the individual judges’ information pages. Bloomberg Law’s state-specific litigation resource pages (click on any state on this map) include links to many of these web pages for federal and state courts across the country.
For more general information about Covid-19, see Bloomberg Law’s In Focus Page: Coronavirus.
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