Litigation Advisory: Guidance for In-House Litigation Counsel Regarding COVID-19

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Introduction

The COVID-19 pandemic has created significant confusion within federal and state courts. There is no uniform federal court approach towards closures or deadlines, and even less consistency among the state courts. And the approaches change, seemingly daily. This patchwork quilt has led to complicated decision-making processes for in-house counsel and their outside litigation teams regarding how best to handle pending litigation matters. We suggest you consider the following guidelines when assessing next steps in your pending cases. If you would like to discuss these issues or any topics relating to your approaches to litigation in the current environment, please contact your Arnold & Porter relationship partner, or Complex Litigation co-chairs Kenneth Chernof and James Herschlein.

1. Never assume deadlines have been postponed or will be postponed absent a clear standing order, an order specific to your case or agreement with opposing counsel and co-counsel. We are reviewing court and administrative orders as they are issued, and some create substantial ambiguity regarding, for example, discovery deadlines. Protect yourself with a formal motion or confirming letter as appropriate. While most courts and litigants will demonstrate common-sense reasonableness once the judicial processes begin to return to normalcy, we have seen some examples of sharp practice, and you will want to have a record and basis for your decisions.

2. Think twice about agreeing to remote or virtual depositions. Technological advances and the increased sophistication of a number of court reporting services have made all-video depositions more possible and user-friendly. But they come with significant limitations which could prejudice your case. Consider the complexity of defending a witness and attempting to interpose objections when your counsel is not sitting nearby. Also consider the limitations or cumbersome implications of having a witness examine part or all of a document. And, even before the deposition itself, preparing the witness appropriately while you, your outside counsel, and the witness are at your respective homes is challenging—and may be ineffective. We recommend that the first question should be: does this deposition need to be taken now, or can it be adjourned until we can get together in person? If it can be adjourned, consider doing so. And if you believe a deposition under these circumstances would be prejudicial, make that known and create a record.

3. The same goes for court hearings. Many, if not most, courts have postponed all in-person hearings and oral argument (in addition to trials). But some have offered to conduct hearings telephonically. Most counsel and judges have engaged in such hearings before for one reason or another, and so the practice is not entirely foreign. But telephonic hearings limit your attorney's ability to truly engage with your judge, to see them nod or grimace, or to see their physical reactions to an argument that you or your opposing counsel is making. If the issues on which you seek to be heard are complicated, nuanced or lengthy, it may be in your interest to reschedule the hearing.

4. Prioritize your active litigation in a manner that suits your needs. While you may want to defer some litigation until things return to normal, you should take stock of your portfolio of matters and prioritize those that are particularly important to your business. Certain commercial disputes, matters relating to your supply chain, and insolvency-related matters may well be essential to your company's ability to successfully navigate the current instability. If you have scarce time and resources, allocate them in a way that will maximize what your company needs.

5. Keep good litigation hygiene. Despite all of the disruption you may be experiencing, remember your basic litigation requirements, including attention to litigation holds and the suspension of document destruction; protection of the attorney-client privilege and work-product in your communications and matters, and compliance with all notice and other requirements.

6. Be careful about tolling agreements. Opposing counsel may ask for tolling agreements. Consider carefully whether such an approach is preferable to simply forcing your opponent to file but then agreeing to extensions of the litigation schedule. We typically recommend to avoid an open-ended toll in favor of a period of a moderate and definite time period, i.e., to a specific date that is three or six months away; the tolling arrangement can always be extended later.

7. In reviewing your litigation caseload, consider whether the current situation presents a good opportunity to resolve any matters. Economic disruptions of the past have sometimes resulted in a more-aggressive litigation mindset, and sometimes less; it is too soon to predict what will follow here, and it will often be case-by-case. But to the extent that you are interested in resolving your matters sooner rather than later, you may also want to consider exploring settlements, whether through alternative dispute resolution mechanisms, or otherwise, mediation or arbitration now.

8. Now is a good time to think about the post-pandemic world. Once the current situation stabilizes, the judiciary may come roaring back to life. But there will be significant backlogs and judges will be extremely busy. So while they may be back on the bench, many will prioritize criminal hearings and trials, and may in any event have little time to hear discovery motions, no matter how petty or significant, or even important dispositive motions. Now is the time to examine your portfolio of litigation, decide what timetables you want, and begin to draft proposed scheduling orders (for negotiation or submission) that will meet your needs going forward . The more you can pre-package for your judges, the better. And now is the time to strategize about how you should factor the expected judicial backlog to your litigation plan.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.