Overview
For additional guidance, please refer to Steptoe's COVID-19 Resource Center.
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement.
First and foremost, we hope you are reading this in good health and that you, members of your family, and your colleagues are safe as we deal with COVID-19 together. We, like you, have been adjusting to work at home. There are plenty of practical tips about our new working environment. We have set our conferences for times slightly before or past the hour when it is easier to join or dial-in. We have learned that if your kids are remote learning while you have a videoconference and you need some more bandwidth or the conference is buffering, someone (the kids) or everyone needs to switch to audio only (turning off the video). It works for us.
We also have received the myriad of updates from law firms about the legal impacts of COVID-19. We hope this update takes a slightly different tact—an update on what has been generally happening in courts, in arbitration hearings, and with depositions. And like most things COVID-19 related there is no one simple answer. Some courts keep calm and carry on as we will be participating in a virtual hearing in the UK High Court today, a matter that may have been expedited because of the court’s sudden availability. Other courts—within the same dispute—have sua sponte extended all deadlines. Some of us are involved in cases that are suspended "indefinitely" at the request of the parties where others are proceeding without any guidance from the court or tribunal whatsoever. We hope our practical advice below will help you navigate the various responses that courts, tribunals, and parties are taking to this crisis.
Courts & Proceedings
The federal and state courts have taken various responses to the COVID-19 crisis. Just a simple survey of the places where Steptoe has US offices shows you the various responses from courts. Starting in Washington, DC (Steptoe's main office and where we are based), the United States Supreme Court postponed oral arguments. According to the Court, "The Court's postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks." The Court also issued an order addressing the timing of cert petitions in light of the current crisis. It ordered that all cert petitions for which the due date had not already passed would now be due 150 days from the date of the order triggering the review process (either the court of appeals opinion or rehearing opinion/denial), rather than the 90 days otherwise allowed. And it will extend the time to respond or reply, upon motion, as a matter of course for a reasonable time (which likely means 60 days under the rules).
The DC Circuit suspended all in-person oral arguments pending further order of the Court. Assigned judges have the discretion to proceed by teleconference, postpone until a later date, or decide cases without argument. The DC District Court is open with limited operations to support "essential functions" in criminal, civil and bankruptcy matters. All jury trials scheduled to begin March 17 through May 11 are postponed and continued pending further order.
The Southern District of New York provided judges with discretion as to how to proceed in each case.
The Northern District of Illinois has issued general orders extending all deadlines.
California has suspended all trials or proceedings until further order.
The state courts too have had various responses. This very helpful website regularly updates an overview of the status of federal and state courts in the US.
Arbitral hearings
As for arbitral hearings, virtually all of the major institutions (ICSID, ICC, JAMS, AAA/ICDR, LCIA, etc.) have their staffs working remotely. Whether hearings proceed or not is up to individual panels and parties as they decide whether to continue virtually or suspend proceedings. We are aware of arbitrations and arbitrators that have chosen each available option. Some have proceeded with virtual hearings with mixed results. Others have decided to defer.
Parties, Pending Proceedings, Discovery and Depositions
For most cases, where there is no specific case order, the parties are continuing to litigate—albeit on a much slower pace. But despite the difficulties, many activities such as depositions in some cases continue virtually. This is particularly true when dealing with experienced witnesses like experts. Certain platforms have very mature platforms to allow for simultaneous publication of exhibits and continued video of the witness.
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Our thoughts are with everyone for your health and safety first and foremost. While many of our cases are slowing down or waiting until the virus subsides, other cases push forward through technology for the next best experience to in-person exchanges. We are available to help with all of the above as we have already experienced both the slow down and taking advantage of that time and a virtual hearing as this is pushed out to you.