Samek, Werther & Mills | COVID-19 — LITIGATING IN THE “NEW NORMAL” ENVIRONMENT
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COVID-19 — LITIGATING IN THE “NEW NORMAL” ENVIRONMENT

The reality of the COVID-19 pandemic is that there will likely be zero civil jury trials, and close-to-zero criminal trials, until the crisis abates. True abatement will not occur until:

 

(1)       there is a vaccine;

 

(2)       there is a great treatment or therapy; or

 

(3)       the virus rips through the populace and we develop “herd immunity.”

 

None of those events is likely to occur soon. Does that mean that litigation in American courts is going to grind to a halt? The answer to that question is a resounding no. The courts, litigants, and the interested public (represented by the news media) will certainly adapt. Those adaptations are in process.

 

This site is dedicated to keeping abreast of the ongoing adaptations to the COVID-19 virus pandemic. When the pandemic abates, it is unlikely that all these adaptations will be abandoned. Many will become permanent fixtures in the litigation landscape.

 

These adaptations necessarily involve the interests of multiple stakeholders: (1) the courts; (2) lawyers; (3) litigants and witnesses; and (4) the interested public. The courts will need to balance and harmonize these interests as best they can as we move forward.

 

Our firm is located in the Washington, D.C. region. For that reason, we focus primarily on what is happening in the local state and federal courts. We are, however, doing our best to stay on top of what is happening in the courts outside the region, as well as the alternative dispute resolution arena with mediations and arbitrations. Please send news of interesting developments to laurin@samek-law.com.

 

DC AREA COURTS

 

United States Supreme Court

 

On April 13, 2020, the United States Supreme Court issued the following announcement:

 

The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases. The following cases will be assigned argument dates after the Clerk’s Office has confirmed the availability of counsel:

 

18-9526, McGirt v. Oklahoma

19-46, United States Patent and Trademark Office v. Booking.com B.V.

19-177, Agency for International Development v. Alliance for Open Society International, Inc.

19-267, Our Lady of Guadalupe School v. Morrissey-Berru, and 19-348, St. James School v. Biel

19-431, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and 19-454, Trump v. Pennsylvania

19-465, Chiafalo v. Washington

19-518, Colorado Department of State v. Baca

19-631, Barr v. American Association of Political Consultants, Inc.

19-635, Trump v. Vance

19-715, Trump v. Mazars USA, LLP, and 19-760, Trump v. Deutsche Bank AG

In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court anticipates providing a live audio feed of these arguments to news media. Details will be shared as they become available.

 

The Court Building remains open for official business, but most Court personnel are teleworking. The Court Building remains closed to the public until further notice.

 

https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-13-20

 

Recent decisions are posted on the Court’s website.

 

On April 30, 2020, the Court announced that it will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases. The Court will provide a live audio feed of the arguments to FOX News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a feed to livestream on various media platforms. The oral argument audio and a transcript of the oral arguments will be posted on the Court’s website each day.

 

https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-30-20

 

Virginia

 

United States District Court for the Eastern District of Virginia

 

  • EDVA General Order 2020-14

 

The Court has found it necessary and appropriate to adopt a face covering and social distancing policy for all Courthouse employees, contractors, and visitors.

 

Per General Order 2020-14, ALL individuals intending to appear in person in the Courthouses in our District, to include employees, vendors, contractors, litigants, attorneys, stakeholders from other agencies, and members of the public, shall be required to:

 

(1) wear a face covering that covers your nose and mouth continuously when in public areas and shared common spaces in our Courthouses, to include hallways, entrance foyers, and courtrooms. Inside of each courtroom, the presiding judge may permit removal of face coverings for the purposes of facilitating a hearing or otherwise promoting the functioning and effective operation of the Court, with efforts made to ensure that individuals permitted to remove their face coverings stay at least six feet apart from other individuals;

 

(2) engage in social distancing within our Courthouses whenever possible, which involves staying at least six feet apart from other individuals; and

 

(3) stay home if you are sick.

 

Any visitor seeking entry to our Courthouses without a face covering will be denied entry by security staff and will be asked to contact the office/chambers to be visited and determine whether alternate arrangements can be made to accomplish the business needs of the visitor without entry to the Courthouse.

 

  • Pursuant to 18 U.S.C. § 983

 

The United States District Court for the Eastern District of Virginia has issued an order providing extensions to certain deadlines relating to the administrative and civil judicial asset forfeiture proceedings within this District. Such order was issued upon motion by the United States and in response to the circumstances created by the COVID-19 pandemic, to include the health risks and endangerment to the life and safety of government asset forfeiture attorneys and staff who are responsible for reviewing cases, issuing notices, and processing claims.

 

For more detailed information, please see the Courts Order by visiting www.vaed.uscourts.gov. or Case No. 2:20-mc-9.

 

  • EDVA General Order 2020-14 and 2020-15

 

1) In response to the COVID-19 pandemic, and to supplement steps previously taken by this Court to reduce the possibility of exposure to COVID-19 and to slow the spread of the disease, the Court finds it necessary and appropriate to adopt a face covering and social distancing policy for all Courthouse employees, contractors, and visitors. Please see General Order 2020-14 In re: FACE COVERINGS AND SOCIAL DISTANCING IN COURTHOUSES ACROSS THE DISTRICT

 

2) In response to recent developments, to include the Courts increased capabilities to conduct remote proceedings and thereby reduce the risk that all Courthouses in the District would be rendered unusable at the same time, the Court has determined that it is no longer necessary for the U.S. Courthouse in Newport News to serve as the Emergency Judicial Center for the District, as was previously directed by General Order No. 2020-10. As such, beginning on May 26, 2020, the U.S. Courthouse in Newport News will be reopened to the public and to all employees, subject to the same restrictions on proceedings and visitors as all other Courthouses in the District. Please see General Order 2020-15 In re: CESSATION OF THE U.S. COURTHOUSE IN NEWPORT NEWS AS THE DISTRICTS EMERGENCY JUDICIAL CENTER

 

  • Continuance of In-Person Court Proceedings and Extension of Filing Deadlines

 

All civil and criminal in-person proceedings scheduled to occur through June 10, 2020 are continued, with the exception of certain critical or emergency proceedings. This includes all trials, hearings, settlement conferences, and appearances.

 

Starting on June 11, 2020, in-person proceedings will no longer be limited to critical or emergency proceedings. Judges will continue to use video and teleconferencing to the extent possible. No criminal jury trials will be conducted prior to July 7, 2020. Grand juries may be utilized again on June 11, 2020. No civil jury trials will be conducted until further notice.

 

http://www.vaed.uscourts.gov/notices/Gen%20Order%202020-16%20Phased%20Expansion%20of%20Court%20Operations.pdf

 

  • Remote Proceedings. The District Court has adopted a temporary policy authorizing the use of video conferencing, or telephone conferencing if video conferencing is not reasonably available, for certain criminal case events.

 

As to criminal proceedings, on April 16, 2020 the District Court ordered that the US Probation Office make those pretrial services reports issued prior to a defendant’s pretrial release or detention hearing (i.e. bond reports) electronically available to the attorneys of record, via a special ECF filer login.

 

Beginning the week of April 20, 2020, the District Court will use the Zoomgov application as an option for judges for remote videoconference proceedings. Prior to the hearing, authorized parties will receive e-mail invitations containing the necessary information to gain online access. For more information, see http://www.vaed.uscourts.gov/zoomgov/index.html.

 

Live Audio-Stream. The E.D. Va. is concerned about preserving the public’s access to judicial proceedings, which is a constitutional right. To preserve public access to court proceedings conducted remotely, the Court is implementing a teleconference service by which members of the public and press can use a toll-free telephone line to listen in remotely to a live audio-stream of proceedings.

 

Members of the public, including the press, may not participate in the Zoomgov videoconference, but may listen in via teleconference access using phone numbers and access codes provided on the District Court’s website. See http://www.vaed.uscourts.gov/zoomgov/Steps%20to%20Participate%20-%20Remote%20Teleconference.pdf.

 

Anyone accessing a court proceeding via the live audio stream is prohibited from recording, rebroadcasting, live-streaming, or otherwise disseminating video or audio of the proceeding.

 

http://www.vaed.uscourts.gov/covid-19.html

 

 

  • On April 10, 2020, the Court issued the following General Order:

 

All civil and criminal in-person proceedings in the U.S. District Court for the Eastern District of Virginia, including court appearances, trials, hearings, and settlement conferences, scheduled to occur through June 10, 2020, with the exception of critical or emergency proceedings, are POSTPONED, subject to the conditions set forth in this General Order. The instant General Order does not postpone any remote proceedings scheduled by a presiding judge in any civil or criminal case.

 

This General Order puts the federal court in alignment with Virginia Gov. Northam’s directive that essentially locks down most of Virginia until June 10.

 

http://www.vaed.uscourts.gov/notices/Gen%20Order%202020-12%20Court%20Operations%20Updated%20Notices.pdf

 

On May 14, 2020, the Court announced that face coverings will be required for anyone entering the courtroom.

 

On May 16, 2020, the Court announced that the Richmond courthouse will be open on May 18, 2020.

 

United States District Court for the Western District of Virginia

 

  • Continuance of In-Person Court Proceedings and Extension of Filing Deadlines.

 

All civil and criminal in-person proceedings scheduled to occur through June 10, 2020 are continued, with the exception of certain critical or emergency proceedings.

 

All issues concerning pretrial deadlines are to be addressed with the presiding judge.

 

  • Remote Proceedings.

 

The District Court has adopted a temporary policy authorizing the use of video conferencing, or telephone conferencing if video conferencing is not reasonably available, for certain criminal case events.

 

As of April 24, 2020, the usual requirement that a detained defendant’s counsel be physically present for review of a presentence report (or “PSR”) is lifted, to allow for counsel to participate remotely by videoconference or teleconference.

 

http://www.vawd.uscourts.gov/media/31965117/video_teleconferencing_criminal_proceedings_cares_act.pdf

 

On May 1, 2020, the Court suspended the requirement that Pretrial Services Reports be returned to the probation officer at the conclusion of a judicial proceeding. Counsel is required to maintain the confidentiality of Pretrial Services Reports and may not disclose them to others.

 

http://www.vawd.uscourts.gov/media/31965614/public-access-to-proceedings-and-pretrial-services.pdf

 

The District Court’s website provides phone numbers which may be used to access of civil and criminal court proceedings held via videoconference or teleconference. See http://www.vawd.uscourts.gov/court-information/covid-19.aspx.

 

Statewide Declaration of Judicial Emergency

 

The Chief Justice of the Supreme Court of Virginia has issued a declaration of judicial emergency, which is currently extended through June 7, 2020. A copy of the latest order extending the emergency period can be found at: http://www.vacourts.gov/news/items/covid/2020_0506_scv_order.pdf.

 

The Supreme Court of Virginia also clarified the provisions regarding the tolling of deadlines on May 6, 2020 as part of the Order. The Court unanimously ordered that the tolling provisions of the March 16, March 27, and April 22, and May 1, 2020 emergency orders, toll the running of any statutory speedy trial period
applicable to criminal prosecutions in the courts of the Commonwealth of Virginia from March 16 until June 7 or later if further extended by this Court.

 

http://www.courts.state.va.us/news/items/covid/2020_0501_scv_order_clarification.pdf

 

Fairfax County Circuit Court

  • Proceedings.

 

On May 18, 2020, the Circuit Court issued its first transition plan.

 

  • In civil cases, starting on June 1, 2020, the Court will hear presently scheduled matters and any new, properly noticed matters via video or teleconference. Trials are limited to matters lasting two days or less. The Court resumed its Friday civil non-evidentiary motions practice. Civil evidentiary motions may be scheduled Mondays through Fridays. Parties may continue to request rulings on any motion based on the filed briefs by waiving oral argument. Jury trials may be scheduled starting August 3, 2020.

 

  • o In criminal cases, starting on June 1, 2020, the Court will resume its Friday criminal motions practice. No jury trials will occur until August 3, 2020.

 

https://www.fairfaxcounty.gov/circuit/sites/circuit/files/assets/documents/pdf/fairfax-cir-ct-first-transition-plan-051820.pdf

 

On May 18, 2020, the Circuit Court issued an order requiring face coverings.

 

  • Temporary Procedure to Request Waiver of Oral Argument.

 

The court has implemented a temporary procedure whereby parties may submit motions to be ruled on without oral argument or a court appearance.

 

https://www.fairfaxcounty.gov/circuit/procedures-to-waive-oral-argument

 

  • Courtroom Attendance.

 

For any matter that cannot be continued, courtroom attendance is limited to attorneys, parties, necessary witnesses, interpreters, court personnel and court reporters, bailiffs, and members of the press where permitted by law. Thus, Fairfax County Circuit Court is maintaining a limited right of public access during the pandemic.

 

Alexandria Circuit Court

 

  • Suspension of Trials and Motions. All civil and criminal trials are suspended through June 7, 2020, consistent with the Supreme Court of Virginia’s Order extending the declaration of judicial emergency

 

All civil motions day dockets are suspended through June 7, 2020, excepting emergency matters. Criminal motions are likewise suspended through June 7, 2020, with the exception of bond motions and bond appeals, which will be held via videoconference. Parties with emergency matters are instructed to contact Judges’ Chambers.

 

  • Clerk’s Office Closed. The Clerk’s Office is closed to walk-in service, and parties are encouraged to mail in pleadings.

 

https://www.alexandriava.gov/uploadedFiles/clerkofcourt/COVID19Revised03302020.pdf.

 

Arlington Circuit Court

 

  • Suspension of Trials. All civil trials are suspended, with status conferences to occur throughout June 2020. See https://arlingtonva.s3.amazonaws.com/wp-content/uploads/sites/9/2020/04/COVID-19-Civil-Cases-4-8-2020.pdf.

 

 

  • Suspension of Motions and Other Matters. All civil and criminal motions are suspended and may be re-noticed pursuant to the court’s local rules.

 

https://arlingtonva.s3.amazonaws.com/wp-content/uploads/sites/9/2020/03/17th-Jud-Cir-Cts-3_18-20Updated-COVID-19-Memo-Final-Version.pdf

 

  • Clerk’s Office Closed. The Clerk’s Office is closed to walk-in service, and parties are encouraged to mail in pleadings.

 

Washington, D.C.

 

D.C. Circuit Court of Appeals

 

  • Postponement of Oral Argument. Pursuant to the state of emergency declared in the District of Columbia, on March 17, 2020 the Court suspended all in-person oral argument. Scheduled arguments will either be postponed, proceed by teleconference, or be decided without oral argument, by discretion of the deciding panel.

 

  • Access to Courthouse. Effective March 11, 2020, access to the courthouse is restricted to judges, court staff, members of the media, and “persons with official business” with the DC federal district and bankruptcy courts or the DC Circuit Court of Appeals.

 

  • Effective April 27, 2020, any person entering the courthouse must wear a facial mask.

 

https://www.cadc.uscourts.gov/internet/home.nsf/Content/COVID-19+Response+-+Information+and+Announcements

 

United States Court of Appeals for the Federal Circuit

 

This is a national court located in Washington, D.C. It handles all patent case appeals; Tucker Act takings cases; and appeals from the United States Court of Federal Claims.

 

  • Remote Proceedings.

 

All cases scheduled for June 2020 will be conducted by telephone. No in person hearings are being held. On April 21, 2020, the Court announced that all oral arguments during the Court’s May 2020 session will be held telephonically.

 

The Court is providing public and media access to live audio of each panel scheduled for argument April, May, and June 2020. The information is posted on the Court’s website every morning. Recordings are also available at the end of the day.

 

The Court has also requested that any questions to the Clerk’s office be emailed.

 

  • Filings and Deadlines.

 

All deadlines remain in place.

 

Filing is to be done electronically. The Clerk’s Office continues to accept documents that can only be filed by paper and filings from parties who are not permitted to file electronically. These filings will continue to be received by U.S. Postal Mail, third-party commercial carriers, or at the court’s night box. The Court has also allowed pro se parties to email their filings.

 

Chief Judge Margaret M. Sweeney signed an Administrative Order on May 12, 2020, indicating that all case proceedings will be held via telephone or video conference until June 15, 2020, unless express permission is granted by the Chief Judge. See official Order.

 

District of Columbia Superior Court

 

  • Court Operations.

 

The Superior Court is holding hearings in the following types of cases starting on May 26, 2020: temporary restraining orders; pretrial, motions, status hearings and scheduling conferences in Civil 1 and Civil 2 cases; certain criminal matters; domestic violence cases; family court matters; and certain probate matters. Most of the hearings are conducted remotely.

 

All other trials, hearings, appearances, and other matters scheduled through June 19, 2020 are continued, with new dates to be determined.

 

https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/Amended-Order-5-14-20.pdf

 

All existing temporary protection orders and civil protection orders remain in effect, and are extended through May 15, 2020 or the next assigned court date. All requests for temporary protection orders remain available through the Superior Court’s Emergency Temporary Protection Order (ETPO) Process. Emergency filings in Civil Protection Order cases can be made through www.probono.net/dccourts.

 

All evictions of tenants and foreclosed homeowners on or before May 15, 2020 are stayed.

 

  • Filings and Deadlines.

 

All Divisions, including the Family Court, are open for filing of pleadings. Electronic filing will continue, and the Superior Court will rule on motions that can be decided without a hearing.

 

All deadlines and time limits that would otherwise expire before May 15, 2020, including statutes of limitation, are tolled and extended during the period of the declared judicial emergency, with certain exceptions listed in the Court’s May 14, 2020 order: https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/Amended-Order-5-14-20.pdf

 

  • Clerk’s Offices Operating Remotely.

 

All Superior Court clerk’s offices have no on-site staff, and are operating remotely. Contact information is available at

 

https://www.dccourts.gov/sites/default/files/Superior-Court-Clerks-Offices-Remote-Operations.pdf.

 

https://www.dccourts.gov/coronavirus

 

Maryland

 

United States District Court for the District of Maryland

 

  • Public Access Limited.

 

The public is no longer permitted to enter the courthouse except for litigants with scheduled proceedings, counsel, investigators or employees of counsel, and the press. All persons will be screened for flu-like symptoms.

 

  • Court Operations.

 

On March 31, 2020, the Court limited in-court proceedings to Mondays, Wednesdays, or Fridays. The Court remains open for emergency criminal, civil, and bankruptcy matters related to public safety, public health and welfare, and individual liberty.

 

The Clerk’s Office remains open to the public through telephone and via drop boxes located. Electronic filing through CM/ECF remains available.

 

  • Extension of Proceedings and Filing Deadlines.

 

All civil, criminal, and bankruptcy proceedings scheduled to occur from March 16, 2020 through June 5, 2020 are postponed unless otherwise ordered.

 

All filing deadlines between March 16, 2020 and June 5, 2020 are extended by 84 days, unless otherwise ordered.

 

Certain discovery in civil cases may proceed as scheduled, provided it does not conflict with public health guidance.

 

  • Transition Plan

     

    On May 22, 2020, the Court issued an order regarding its transition plan, which provided, in relevant part as follows:

     

    • All civil and criminal petit jury selections and jury trials scheduled to commence through June 30, 2020, before any district or magistrate judge in any courthouse in the District of Maryland are POSTPONED and CONTINUED.
    • With the exception of the jury trials identified above, all civil and criminal hearings, trials, and proceedings in the Court shall continue as presently scheduled, unless otherwise ordered by the presiding judge;
    • Some civil jury trials may commence on or after July 1, 2020;
    • Some criminal jury trials may commence on or after August 1, 2020.

     

    https://www.mdd.uscourts.gov/sites/mdd/files/2020-11.pdf

 

All State Courts

 

On April 3, 2020, Court of Appeals Chief Judge Mary Ellen Barbera published an Administrative Order On Expanding The Statewide Suspension Of Jury Trials And Suspending Grand Juries.

 

https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmdcourts.gov%2Fsites%2Fdefault%2Ffiles%2Fadmin-orders%2F20200403expandingstatewidesuspensionofjurytrialsetc.pdf&data=01%7C01%7Claurin%40samek-law.com%7C91a3ba68740241bdcdc708d7da7aaa70%7C656e13ab7949417ca70d2fbf662251df%7C0&sdata=M7GUZnp4ynqEL%2B4y2XsT3mbLaA%2FLdwR2KC%2BbIwc9sAk%3D&reserved=0

 

Pursuant to the Administrative Order:

 

  • All grand juries shall be suspended until further notice, subject to any exception that may be granted on an individual basis by the Chief Judge of the Court ofAppeals.

 

  • All civil jury trials in the Circuit Courts throughout the state of Maryland scheduled to begin on or after March 16, 2020, have been and shall be suspendedon an emergency basis pending further Order of the Chief Judge of the Court ofAppeals.

 

  • All criminal jury trials in the Circuit Courts throughout the state of Maryland scheduled to begin on or after March 16, 2020, have been and shall be suspendedon an emergency basis pending further Order of the Chief Judge of the Court ofAppeals.

 

  • Any currently scheduled trial date that is at least six weeks after the date that concludes the COVID-19 emergency period as ordered by the Chief Judge ofthe Court of Appeals will be maintained, absent further order of the court inwhich the trial is scheduled.

 

On April 8, 2020, Judge Barbera published an updated order that revised the April 3, 2020 Order to include certain additions related to juvenile shelter care hearings and child in need of assistance matters. The order also added a provision regarding the suspension of notices of contemplated dismissal.

 

https://www.mdcourts.gov/sites/default/files/admin-orders/20200408expandingstatewidejudiciaryrestrictedoperationsamended.pdf

 

On April 14, 2020, Judge Barbera published an updated order that revised the April 8, 2020 Order to restrict court operations through June 5, 2020. The Order also provided additional details related to emergency delinquency hearings.

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/Extending_RestrictedOperations_04142020.pdf

 

Also, on April 14, 2020, Judge Barbera issued another order, which requires judges to hold prompt hearings for certain categories of cases in which individuals are detained.

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/ResponseIncarorImprsned_Person_04142020.pdf

 

On May 4, 2020, Judge Barbera issued two new orders. The orders clarified the tolling of statutes and deadlines.

 

https://mdcourts.gov/sites/default/files/admin-orders/20200504furtherclarifyingstatutesoflimitations.pdf

 

https://mdcourts.gov/sites/default/files/admin-orders/20200504fourthamendedadministrativeorderexpandingandextendinjudiciary restricted operations.pdf

 

On May 22, 2020, Judge Barbera issued several orders regarding the progressive resumption of the full function of judicial operations.

 

https://mdcourts.gov/sites/default/files/admin-orders/20200522progressiveresumptionoffullfunctionofjudiciaryoperations.pdf

 

https://mdcourts.gov/sites/default/files/admin-orders/20200522revisedemergencytollingorsuspensionofstatutesoflimitations.pdf

 

https://mdcourts.gov/sites/default/files/admin-orders/20200522liftingthestatewidesuspensionofjurytrialsandresuminggrandjuries.pdf

 

Here is a set of answers to Frequently Asked Questions from the Maryland judiciary:

 

https://www.msba.org/faqs-question-set-5-to-judiciary/?utm_source=msba%20weekly&utm_medium=email

 

Circuit Court for Montgomery County

 

  • Court Operations.

 

On March 25, 2020, the Court issued an order restricting the Court to emergency operations, and closed the Court to the public with limited exceptions through May 1, 2020. Thus, as with Maryland’s federal court, the right of public access to judicial proceedings is being significantly curtailed during the crisis.

 

Certain emergency matters would continue to be heard in person or remotely, including emergency criminal, civil, family, and juvenile detention matters, as well as protective orders.

 

As of April 14, 2020, that includes bail reviews and bench warrants; arraignments for detained defendants; juvenile detention hearings; peace order petitions for juvenile respondents; emergency evaluation petitions; quarantine and isolation petitions; extradition cases; body attachments; and extreme risk protective order appeals. Other emergency matters may be heard in the court’s discretion.

 

Any hearings are held virtually, usually by telephone, with videos being used by detention centers. Where reference to documents is necessary, the transmission of documents between locations may be by facsimile, file-sharing programs, or video transmission of sufficient resolution for legibility.

 

All jury trials are postponed.

 

Persons other than media are not permitted in the courthouse except in limited circumstances. The Court is, thus, permitting the news media to be the eyes and ears of the public.

 

On April 15, 2020, the Court issued an order regarding the wearing of face coverings in the courthouse. The relevant portions of the Order are, as follows:

 

ORDERED, that effective on April 20, 2020, all persons entering the Circuit Court for Montgomery County shall wear a face mask, scarf, or other device covering their nose and mouth, and it is further

 

ORDERED, that such mask, scarf or device must be continuously worn by those persons during the time they are in the courthouse, and it is further

 

* * *

 

ORDERED, that no person may ride on an elevator containing other persons, unless all persons are wearing a face mask, scarf, or other device, and it is further

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/FaceMasks_and_SoclDistancing_04152020.pdf

 

The order on masks was clarified on April 30, 2020: https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/FaceMasks_and_SoclDistancing_04302020.pdf

 

Beginning on April 27, 2020, the Court is allowing parties to agree to civil motions previously set for hearings through June 4, 2020 to be decided on the papers.

 

On May 1, 2020, Judge Greenberg held a virtual townhall for the Court. Below are some of the relevant points:

 

  • Have a skeleton staff which calls for just essential services
  • Family division is almost up to date with filing
  • Reopening – current order sets date as June 8. Judge Barbera will decide and work with Governor Hogan to coordinate
  • If June 8 is the day, the Court may have a roll out that will consist of 2 weeks where Court is open to finish business before public can enter the Court
  • Stagger starting times of cases once trials start
  • Jury trials will not start at least 6 weeks after 6/8 opening
  • Civil jury trials – will probably be 3-4 months after reopening
  • Uncontested divorces – will be scheduled
  • Discovery rules apply – no suspension of rules regarding answering or replying to motions
  • Virtual drop box – set up virtual drop box for discovery and certain other motions

 

Beginning on May 4, 2020, the Court will be conducting some uncontested divorce hearings remotely.

 

On May 22, 2020, the Court announced that will be resuming non-emergency operations on Monday, June 8, 2020. Even with the reopening, the building will remain closed to the public and attorneys, with limited exceptions, until at least June 22.

 

JURY TRIALS – All jury trials in civil and criminal cases are postponed until at least October 5, 2020l.

 

EMERGENCY DOCKETS – The court will continue to hear the cases it presently hears under the requirements of Judge Barbera’s previous orders. All such hearings will continue to be held remotely, whenever possible. No other trials, hearings or proceedings of any type scheduled for June 8-June 26, inclusive, with few exceptions.

 

CONTESTED TRIALS OF ANY TYPE (CRIMINAL, CIVIL, FAMILY, JUVENILE OR OTHER) – All such cases previously scheduled for June 8 through June 26, inclusive, will be postponed to a new date.

 

MOTIONS IN CIVIL CASES – Those cases which were previously set on the 10:00 a.m. civil motions dockets from Monday through Friday will remain on the docket and be heard by telephone or videoconference, beginning with cases set to be heard on June 1 (not June 8), 2020.

 

STATUS/PRETRIAL HEARINGS IN TRACK 2 CIVIL CASES – All such hearings set for the period of March 16 through July 2 have been removed from the docket and will not be rescheduled.

 

PRETRIAL/SETTLEMENT HEARINGS IN TRACK 3 CIVIL CASES – All such hearings set for the period of March 16-July 2 have been removed from the docket and will not be rescheduled.

 

CRIMINAL SENTENCING HEARINGS – All such cases set before any judge during the weeks of June 8-19 will be rescheduled.

 

Dates on Scheduling Orders in all civil and family law cases, and criminal cases where applicable, where Scheduling Orders were issued before March 16, 2020, shall be adjusted by adding 84 days (the length of the court emergency closure) to each event described, provided the original event date for which extension is sought was after March 16.

 

The virtual dropboxes established by previous order of this court for the resolution of Track 2 and 3 family law and civil discovery and juvenile cases are discontinued, effective June 5, 2020. New electronic filing systems, which will be described in a future message, are being instituted effective June 8, 2020.https://montgomerycountymd.gov/cct/index.html

 

  • Filings and Remote Procedures.

 

Because the Court normally does not accept electronic filings, it is working on finding ways to deal with other motions and filings remotely.

 

  • Other Relevant Information

 

On April 1, 2020, the Court reiterated that it was only processing and ruling on emergency matters. All filings mailed or placed in the drop box must be marked as emergency or non-emergency. The Court also announced that it is working on strategies to deal with non-emergency matters, and extension will be liberally granted after the Court reopens.

 

On April 6, 2020, the Court reiterated that statutes and rules deadlines to hear pending matters are tolled and suspended, effective March 16, 2020. New deadlines are also tolled and suspended. This was again reiterated on April 14, 2020.

 

https://www.montgomerycountymd.gov/cct/COVID-19-Notices/COVID-19-Notices.html

 

On April 10, 2020, the Court issued the following Administrative Order Regarding Electronic Filing:

 

Having been authorized on April 3, 2020 by the Court of Appeals to use a Virtual Drop Box for electronic filing during the COVID-19 emergency period, and having since determined that use of such a Virtual Drop Box would be appropriate under the circumstances set forth below, it is this 10th day of April, 2020, by the Circuit Court for Montgomery County, Maryland, hereby

 

ORDERED, that there is established a Virtual Drop Box for electronic filing in the Circuit Court for Montgomery County, Maryland (hereinafter “electronic filing”) for limited purposes only, as described below; and it is further

 

ORDERED, except as provided below, that nothing herein is intended to limit a litigant’s ability to file items with the Clerk of the Court, either by regular mail or by depositing them into the physical drop box on Maryland Avenue (collectively “physical filing”); and it is further

 

ORDERED, that electronic filing in the Virtual Drop Box is available only in Civil Track 3 cases and only for motions upon failure to provide discovery pursuant to Rule 2-432; motions for discovery protective orders pursuant to Rule 2-403; and motions to quash deposition subpoenas pursuant to Rule 2-510(f), together with all supporting memoranda and exhibits, all responsive memoranda and exhibits, (collectively “discovery motions”), and no other pleadings or motions of any type or any other Civil Track will be considered; and it is further

 

ORDERED, that litigants wishing to file the aforesaid motions electronically in the Virtual Drop Box may do so only if they abide by all provisions of this Administrative Order; and it is further

 

ORDERED, that any motion or paper submitted for electronic filing in the Virtual Drop Box that does not comply with all provisions of this Administrative Order will be rejected for electronic filing; and it is further

 

ORDERED, that if a motion or paper is rejected for electronic filing, a litigant wishing to file it during the emergency period must subsequently do so by physical filing and it will be reviewed by the Court after the emergency period ends; and it is further

 

ORDERED, that motions, supporting memoranda and exhibits, and responsive memoranda and exhibits received for electronic filing will be deemed “filed” as of the date they are simultaneously uploaded into the Virtual Drop Box; and it is further

 

ORDERED, that an Order on a discovery motion will be deemed “filed” as of the date handwritten on it by the Court; and it is further

 

ORDERED, that all electronically-filed items will be docketed after the emergency period ends, or sooner if possible, with docket entries listing the above filing dates as the “actual filing date;” and it is further

 

ORDERED, that no paper copy of the Order will be sent by the Clerk to the parties, and it is further

 

ORDERED, that litigants wishing to file motions, supporting memoranda and exhibits, and responsive memoranda electronically pursuant to this Administrative Order must do so (1) simultaneously; (2) in .pdf file format; and (3) styled with the case number and date of uploading to the Virtual Drop Box; for example, a motion to for a protective order uploaded on April 13, 2020 in Case No. 123456V must be styled, “123456V Motion for Protective Order Filed April 13, 2020; and an opposition thereto must be styled “123456V Opposition to Motion for Protective Order Filed April 13, 2020;” it is further

 

ORDERED, that any motion not containing a certificate of good faith attempts to resolve dispute under Maryland Rule 2-431 will not be considered; and it is further

 

ORDERED, that supporting memoranda shall not exceed 15 pages in length, with no exceptions permitted; and it is further

 

ORDERED, that the Court will decide all motions on the papers, without a hearing; and it is further

 

ORDERED, notwithstanding any time that may elapse between the “deemed filing date” and the “actual filing date,” litigants filing discovery motions electronically shall abide by all time periods and deadlines established in Orders ruling on discovery motions; for example, if the court issues an Order with a handwritten deemed filing date of April 17, 2020, and therein orders the production of interrogatory answers within ten days of the filing of the Order, but the actual filing date is June 1, 2020, the deadline for production is April 27, 2020; and it is further

 

ORDERED, discovery motions submitted for physical filing prior to the effective date of this Administrative Order may not be withdrawn and re-filed electronically in the Virtual Drop Box; and it is further

 

ORDERED, that a signature on an item submitted for electronic filing has the same force and effect as a signature required under Rule 1-311; and it is further

 

ORDERED, that the Court Administrator is directed to publish further instructions on the court’s website regarding access to the Virtual Drop Box (montgomerycountymd.gov/cct/), and it is further

 

ORDERED, that litigants filing electronically pursuant to this Administrative Order must retain the original motion or paper until the case is concluded or for such longer period of time as is required by court order or other applicable law.

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/Administrative_Order_Regarding_Electronic_Filing_04102020.pdf

 

On April 15, 2020, the Court issued an order allowing for filings related to juvenile emergency proceedings to be emailed to the Court.

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/ElectronicFiling_inJuve_Emrg_Order_04152020.pdf

 

On April 27, 2020, the Court extended the electronic filing procedures from only Track 3 discovery disputes to include Track 2 civil cases and also certain family matters.

 

https://www.montgomerycountymd.gov/cct/Resources/Files/COVID-19-Notices/AmendedOrder_ElectronicFiling_04272020.pdf

 

Circuit Court for Prince George’s County

 

  • Court Operations.

 

On March 25, 2020, the Court issued an order restricting the Court to emergency operations, and closed the Court to the public with limited exceptions through May 1, 2020. This is now extended through June 5, 2020.

 

As of April 8, 2020, that includes bail reviews and bench warrants; arraignments for detained defendants; juvenile detention hearings; juvenile shelter care hearings; peace order petitions for juvenile respondents; emergency evaluation petitions; quarantine and isolation petitions; extradition cases; body attachments; and extreme risk protective order appeals. Other emergency matters may be heard in the court’s discretion.

 

The Court’s website states that it is working to address every emergency and bond hearing that is filed. Remote hearings in front of a judge are scheduled, if needed. Bond hearings are also heard each day.

 

All jury trials are postponed.

 

  • Filings

 

The Court is not a MDEC county and does not accept electronic filings. A drop box is available for filings.

 

https://www.princegeorgescourts.org/AlertCenter.aspx?AID=The-Courthouse-is-closed-to-the-Public-t-22
  

OUTSIDE THE DC REGION

 

California

 

Federal District Courts

 

On April 9, 2020, California’s Eastern and Central Districts asked the Judicial Council of the Ninth Circuit to suspend Speedy Trial Act deadlines because of strained judicial resources backlogs caused by COVID-19. The requests come days after the Judicial Council of the Ninth Circuit suspended Speedy Trial Act rules in the Southern District of California. So, rather than adapt to the crisis, these courts seek relief from congressional and constitutional deadlines because the of backlog they are creating by failing to adapt to the crisis. In fairness, judicial vacancies in these districts are also to blame.

 

Connecticut

 

U.S. District Court (New Haven)

 

On April 13, 2020, former Alstom SA executive Larry Puckett was sentenced via videoconference after waiving his right to be sentenced in court.

 

Florida

 

Supreme Court

 

The Florida Supreme Court will hold oral arguments using zoom for arguments scheduled for the first week in May, including two cases that involve medical marijuana regulations and a proposal to make recreational marijuana legal in Florida. The Court plans to complete a practice run for those arguments the week before they are scheduled to take place.

 

On April 29, 2020, the Court announced that it ran several dry-run tests ahead of the first argument scheduled for May 6. The Court warned attorneys regarding appropriate attire:
“Despite this change, the Florida Supreme Court still will require proper decorum. Attorneys in the May 6 cases have been reminded to observe the usual formalities in their dress, manners, and comments even though they will be working from remote locations.”

 

https://www.floridasupremecourt.org/News-Media/Court-News/Florida-Supreme-Court-prepares-for-historic-May-6-arguments-using-remote-technology-due-to-coronavirus

 

Florida’s state courts continue to handle essential cases. All jury trials are suspended. No proceedings other than essential proceedings and proceedings critical to the state of emergency are to be conducted in-person. Nonessential court proceedings are to be rescheduled or canceled unless they can be effectively conducted using remote technology.

 

https://www.floridasupremecourt.org/News-Media/Court-News

 

On May 4, 2020, the Chief Justice expanded matters that will be heard remotely. The order also extended the current suspension of jury trials in Florida until July 2, 2020. Additionally, the order made corresponding changes to some legal deadlines by pushing them back until the Monday after the July 4 holiday weekend.

 

https://www.floridasupremecourt.org/News-Media/Court-News/Chief-Justice-issues-emergency-order-expanding-remote-hearings-and-suspending-jury-trials-into-early-July-statewide

 

On May 13, 2020, the Court announced it will hold three more days of oral arguments using remote video teleconferencing when it hears cases in June.

 

On May 14, 2020, the Court announced that court employees must report certain kinds of personal travel and may be required to work at home or observe quarantine measures for periods of time afterward that are recommended by the CDC or other health authorities.

 

https://www.floridasupremecourt.org/News-Media/Court-News

 

On May 21, 2020, the Court issued an order regarding procedures as the state enters into the Phase 2 transition plan. Pursuant to the order:

 

  • All grand jury proceedings, jury selection proceedings, and criminal and civil jury trials shall remain suspended through July 2, 2020. A pilot project to identify and evaluate issues relating to the conduct of a jury trial through remote means has been authorized.

 

  • Essential and critical trial court proceedings should continue to be conducted remotely or, if necessary, in person.

 

  • Certain non-essential proceedings shall be conducted using telephonic or other electronic means available in the subject jurisdiction.

 

  • No proceedings or other court events other than essential proceedings and proceedings critical to the state of emergency or the public health emergency shall be conducted through in-person hearings.

 
 

Broward County

 

Appropriate attire is still required. A Florida state court judge has admonished attorneys to wear pants during Zoom hearings. Reported in AboveTheLaw:

 

https://www.floridasupremecourt.org/News-Media/Court-News/Chief-Justice-issues-emergency-order-expanding-remote-hearings-and-suspending-jury-trials-into-early-July-statewide

 

See the Court’s letter to the local bar association here:

 

https://www.westonbar.org/so/61N5VoOJe?fbclid=IwAR3gBGUaUfpC8qs0612nMrw-lSDgZkDFiOiCcKGXBjd3SDS8PisCrslHN6c#/main

 

The above contains a great quote:

 

But there is no such thing as an objection to Zoom. That having been said, I for one will not conduct a two-week expert-laden hotly contested trial via Zoom; I will reschedule that one for late summer or early fall (if we’re lucky). At the end of the day, we conduct these hearings as best we can, knowing we’re running on one of those miniature spare tires we pulled from the trunk rather than a “real” tire. But it will get us to where we need to go if we decrease our speed and increase our caution and shorten our trip. Resolve as many issues as you can through negotiation and then buckle up. We’ll get there, but it may get a little bumpy along the way. Please, stay safe and healthy … and lucrative.

 

This is probably good advice for intra-firm Zoom meetings as well.

 

Kansas

 

Kansas Supreme Court

  • Remote Proceedings

 

On March 18, 2020, the Supreme Court directed all courts in the state to cease all but emergency operations.

 

On April 3, 2020, the Supreme Court amended the March 18, 2020 Order to, inter alia, (1) clarify that litigation conduct is not limited when it does not involve a judge or court employee; (2) encourage parties to meet deadlines if an in-court appearance is not required; (3) confirm that courts must have enough staff to carry out essential functions (nonessential functions may be performed if resources allow); (4) clarify that nonessential hearings may occur, but through telephone or videoconferences; and (5) confirm that the courts will continue to accept electronic filing in all cases.

 

On May 1, 2020, Chief Justice Marla Luckert issued six new administrative orders to provide updated instructions to courts as the state slowly reopens.

 

  • Other Relevant Information

 

The Chief Justice is permitted to suspend all statutes of limitations and statutory time standards or other deadlines.

 

https://www.kscourts.org/About-the-Courts/Court-Administration/OJA/Kansas-Courts-Response-to-Coronavirus-(COVID-19)

 

New York

 

New York State Courts

 

  • Remote Proceedings-Virtual Court Model.

 

On March 25, 2020, the New York City Criminal Court commenced court proceedings by videoconferencing using Skype for Business and/or telephone (the “virtual court model”). Arraignments remain open to the public, but access is monitored and limited. Special video arrangements are made for criminal defendants.

 

On March 26, 2020, the New York City Family Court commenced the virtual court model for appearances in child-protective intake cases involving removal application, newly-filed juvenile delinquency intake cases involving remand applications, emergency family offense petitions, and writ applications where there is a court order for custody or parenting time.

 

On March 29, 2020, the virtual court model was commenced in various counties for essential and emergency court matters.

 

On April 6, 2020, it was announced that all essential and emergency court matters in New York will be permitted to be heard using the virtual court model. A very small staff will continue to process essential and emergency paperwork.   Proceedings for the essential and emergency matters will remain open to the public, but access will be strictly monitored and limited. The New York State Courts are also working on extending the virtual court model to matters that are not considered essential or emergency.

 

On April 9, 2020, the number of virtual courtrooms was increased for essential/emergency matters.

 

On April 30, 2020, it was announced that the New York courts have heard over 25,000 cases virtually since April 13, 2020. It was also announced that new motions or responsive papers may now be filed electronically in courts that have electronic filing. In courts that do not have electronic filing, a new document delivery system has been set up. Further, problem-solving courts can now conduct conferences using Zoom. Notices of appeal can now be filed electronically.

 

On May 13, 2020, it was announced that the court system will be beginning to return to in-person courthouse operations in certain counties and new cases can be filed in those counties. The physical offices remain closed to the public. In the counties re-opening, clerks will begin logging, prepping and queuing documents received since the courts closed.

 

On May 20, 2020, it was announced that courts in Western NY, Capital Region begin to return to in-person operations. Courts in downstate counties will begin accepting new cases.

 

On May 22, 2020, it was announced that in-person court resumed in 40 upstate counties.

 

  • Non-Essential Matters.

 

On March 22, 2020, the New York State Courts announced that no new filings would be accepted in non-essential matters. As of April 6, 2020, all non-essential court functions remain suspended.

 

On April 13, 2020, it was announced that the court system is extending its virtual court model to non-essential matters, including tort, asbestos, commercial, matrimonial, trusts and estates, felony, family and other cases.

 

On May 13, 2020, it was announced that new cases may be filed in certain counties that are reopening. https://www.nycourts.gov/

 

Texas

 

Texas Federal Court

 

 

MV3 Partners LLC v. Roku, Inc., which is a patent infringement case pending in federal district court in Waco, is a Texas case involving lawyers from the D.C. Region. On April 9, 2020, District Judge Alan Albright denied Roku’s request for a continuance of a trial scheduled to start on June 1. Roku asked for a continuance because its attorneys in Maryland and Virginia are under stay-at-home orders and might not be able to travel to Texas. In a one-line order denying the motion, Judge Albright stated that it would be “premature” to reschedule the June 1 start date despite the legitimate health and logistical concerns amid the COVID-19 pandemic.

 

Texas Supreme Court

 

On April 8, 2020, the Texas Supreme Court started hearing oral argument via Zoom videoconference technology. The first argument was in a $1.7 billion negligence case. The oral arguments were live streamed on YouTube.

 

zoom

 

https://www.youtube.com/channel/UC0gZPfa2qBYO7oJvt6TKixg

 

On April 27, 2020, the Court clarified many of its existing orders. The Court expanded authority for remote proceedings to include grand jurors. Further, any deadline for filing or service of any civil case that falls on a day between March 13, 2020, and June 1 is extended until July 15. This does not include deadlines for perfecting appeal or for other appellate proceedings,

 

https://www.txcourts.gov/supreme/news/coronavirus-emergency-orders-revised/

 

 

Legal Service Providers

 

There many vendors providing important services to the legal industry. Below is a decidedly unscientific survey of how some of them are adapting.

 

Arbitration Administration Organizations

 

The American Arbitration Association and the International Centre for Dispute Resolution

 

The AAA and its international division, the ICDR, assists with alternative hearing arrangements, including videoconferencing and teleconferencing. Click the link below for the AAA-ICDR Panelist Resource Guide for Virtual Arbitration Hearings.

 

International Chamber of Commerce

 

The ICC has studied this issue intensely and issued a long white paper outlining the changes it is making in light of the crisis.

 

E-Discovery Vendors

 

Driven

 

Driven can forensically collect data from virtually any source through its remote collection kits. Data can be transferred using encrypted high-speed transfer technology. All subsequent data processing is achieved using Driven’s secure, virtualized, and scalable processing methodology.

 

To accommodate remote document reviews, Driven’s comprehensive solution includes software installed on each reviewer’s remote workstation, allowing virtual supervision and monitoring, along with a thorough screening process that creates a secure and productive work environment.

 

Court Reporting and Deposition Service Providers

 

Planet Depos

 

Planet Depos has transitioned depositions, mediations, and arbitrations to a completely remote setup. Before COVID-19, an overwhelming majority of the legal proceedings that Planet Depos covered took place in person. That is, all attendees — attorneys, witness, court reporter, interpreter, and videographer — were in the same room. In the last month PD saw this ratio completely flip, with a vast majority of its depositions taking place with all attendees in separate locations. Planet Depos has been providing remote deposition services for more than 10 years and it has hosted webinars for thousands of litigators and support staff to introduce them to the technology and provide training and best practices, including introducing and marking exhibits. More information can be found here:

https://planetdepos.com/remote.

 

On May 20, 2020, Planet Depos announced its plan to return to in-person proceedings.See https://planetdepos.canto.com/s/OG3K9?viewIndex=0

 

The highlights of the plan are as follows:

 

  • PD will be following all CDC, federal, state, and local recommendations and best practices and will implement changes as they are released.

 

  • All staff, contractors, and guests will be required to wear face coverings and maintain six feet of social distancing.

 

  • Anyone presenting with symptoms (such as a fever) or anyone who has come into contact with a COVID-positive individual within 14 days will be asked to leave, and alternative arrangements such as a remote deposition will be offered.

 

  • Maximum capacity of our conference rooms and offices will be temporarily lowered in accordance with social distancing guidelines.

 

  • All offices will be routinely cleaned and disinfected, and we will provide tissues, no-touch trash cans, hand soap, alcohol-based hand sanitizer, and more.

 

Magna Legal Services

 

Magna is offering the following remote services with discounted/ waived fees for the duration of the crisis: platforms with reduced/waived fees for remote depositions, mediations, hearings, and arbitrations. It is also reducing fees on remote jury research (reduced fees for focus groups and damage assessment services), and remote witness prep services.

 

Below are links to some of Magna’s tutorials for remote depositions:

 

Sharing Exhibits: https://www.youtube.com/watch?v=E0qPpOchvIc&list=PLu6KDpdkgNTPwnT7UDhgYp2QxgU_I1bBg&index=5

 

Annotating Exhibits: https://www.youtube.com/watch?v=ihci0mKEH1g&list=PLu6KDpdkgNTPwnT7UDhgYp2QxgU_I1bBg&index=6

 

Using Break-Out Rooms: https://www.youtube.com/watch?v=5ObhtyYaosM&list=PLu6KDpdkgNTPwnT7UDhgYp2QxgU_I1bBg&index=8

 

Real Time Court Reporting: https://www.youtube.com/watch?v=pTVIeKKRj3U&list=PLu6KDpdkgNTPwnT7UDhgYp2QxgU_I1bBg&index=10&t=0s

 

LAWYER ADAPTATIONS

 

The legal industry has almost instantaneously changed via the wide adoption of video conferencing technologies such as Microsoft Teams and Zoom. These technologies are being used to conduct firm meetings, meet with clients, and prepare witnesses.

 

Our firm has been combining video conferencing technology (Teams or Zoom) with evidence presentation software offerings like TrialPad, with is an iPad app. This combination makes it possible to prepare witnesses remotely and it should facilitate virtual mediations and, perhaps, even some kinds of arbitrations.