Litigation Management Checklist in the Time of COVID-19

We are all experiencing unprecedented challenges right now, both personally and professionally. To ease some of your legal team’s anxieties, we have put together a litigation-specific checklist with the measures we recommend taking, which we hope will help you manage your litigation docket in these trying times:

• Tracking Court Delays: Your legal teams should determine how the courts where you have pending cases are handling deadlines and hearings.  Many courts are paring down their calendars, delaying or canceling hearings, and conducting proceedings telephonically rather than in person.  The Federal Circuit has ordered that all existing deadlines remain in effect, but has shifted all April hearings to be conducted telephonically. The California courts have postponed all trials by 60 days.  But, certain California judges and courts have continued to enforce tight pre-trial schedules regardless of the changing landscape.  Others have suspended or tolled some or all filing deadlines and other schedules, either indefinitely or until some set date, which may change.  There are no universal practices currently in place at either the national or state level; therefore, it is essential to visit the websites for the specific courts you are in to determine exactly how each one is handling this crisis.  Make sure that your events are re-calendared, travel arrangements have been canceled, and where appropriate, arrangements are made for attendance at hearings by Court Call or any other methods by which courts are allowing remote appearances – some judges in the Northern District of California, for instance, are circulating conference call dial-ins instead of Court Call.
   
• Communicating with Opposing Counsel: Given the dynamic nature of courts’ and individual judges’ responses to the COVID-19 crisis, ensure that your legal teams are in touch with opposing counsel, and that there is an agreement in place regarding upcoming deadlines, including depositions.  Courts appear to be very sensitive to what is going on right now, but it is best to make sure everyone is on the same page. 
   
• Monitoring Changes to Traditional Mail Services: Make sure your teams reach out to opposing counsel to reach an agreement that service must be by email. While the postal service and many mail rooms remain operational, most people are working from home — attorneys and staff — so reliable service can only be achieved electronically.
   
• Collecting and Producing Documents Electronically: Shift document collection and production to electronic means, such as by secure FTP links, to the extent such means are not used already.  This crisis will call upon your eDiscovery teams to reach deep and coordinate carefully with all parties.  In a time when it may be hard to deliver material in hard copy, or by hard drive or flash drive, your legal teams will want to digitize the document collection process end-to-end, so that it can be managed remotely.  Your eDiscovery team likely already has a way to transfer files securely and electronically so we suggest contacting them to arrange an electronic transfer instead of copying to an external drive. 
   
• Video Conferencing: We are heavily relying on Zoom and other video conferencing services, and recommend that your legal teams do the same.  In addition to the ability to host large groups, Zoom and similar products offer easy-to-use screen and document sharing capabilities.  Video conferences have many benefits, including enabling face-to-face guidance and collaboration, and thereby lessening potential work-at-home isolation. 
   
• Enlisting Litigation Vendors: Engage with your trusted deposition vendors to ensure they have the technology to perform remote depositions. 
   
• Conducting Remote Depositions: Key considerations in advance of remote depositions include: (a) making sure you have all the documents you may need[1]; and (b) testing the technology to make sure that it is working properly, and that you know how to use it (i.e., share screen function, muting yourself, etc.).  During telephonic depositions without video, it is also important to remember to listen very carefully and allow time for long pauses, as you will not be able to pick up visual cues that would otherwise be apparent in-person.
   
• Conducting Remote Court Appearances: The same advice that applies to telephonic depositions should also be followed for remote court appearances.  For example, allow for longer pauses because you will not be able to pick up visual cues from the judge or opposing counsel.  There have been some technical difficulties with dial-in systems the courts are using, such as AT&T conference call software.  While adjusting to these changes, some judges have been bumped off of calls, and attorneys have abruptly interrupted other attorneys and the judge due to poor connection.  Patience is key as courts, and lawyers, adjust to these new systems.
  
  Finally, keep in mind that things are changing rapidly, and that many courts and vendors are still figuring out how to respond.  Check court websites regularly, and maintain open lines of communication with clients and opposing counsel, in the coming weeks and months.