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IP Alert: Litigation in the Time of Social Distancing—How COVID-19 Is Affecting Discovery Deadlines and Depositions

April 17, 2020

In recent decisions issued during the current pandemic, courts have signaled that civil case discovery may still proceed in certain circumstances, but on a longer schedule, even in the COVID-19 environment.

In Ingevity Corp. v. BASF Corp., the District of Delaware granted an opposed motion to extend the deadline to complete expert depositions by 30 days in light of governmental restrictions. The court did, however, indicate that the parties should be prepared to conduct six expert depositions by means other than in person if government restrictions should continue.

In another case, Elsherif v. Mayo Clinic, because one witness was a high-risk individual for COVID-19, the District of Minnesota delayed a deposition and allowed the parties to submit a scheduling proposal within 30 days. Likewise, in Brooks v. Artus, the Eastern District of Wisconsin granted a motion to reschedule the deposition of an inmate due to concerns regarding COVID-19.

In Devine v. XPO Logistics, the Northern District of Illinois, recognizing the current orders from the governor of the State of Illinois and the Chief Judge of the Northern District and the heavy burden on medical professionals in dealing with the pandemic, extended discovery deadlines accordingly. In addition, the court ordered that the depositions of third-party medical professionals would require detailed proof of need under the balancing requirements of the discovery rules, in view of the necessity for medical professionals to address the pandemic rather than sit for depositions.

It appears that when remote depositions are feasible, courts will not be reluctant to order that depositions and other discovery proceed. However, courts are lenient when considering motions to extend discovery deadlines or limit discovery in instances where attendance would endanger the attorneys or witness, or would not be in the public interest in view of the pandemic, particularly if remote depositions are not practical or possible for the witness.

Fitch Even attorneys are monitoring developments in this area and will report on further trends. If you have any questions regarding the impact of COVID-19 on litigation proceedings, please contact Fitch Even partner Karl R. Fink, author of this alert.

Fitch Even associates Andrew C. Wood and Vincent R. Meyer contributed to this alert.

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