Coronavirus: What happens to my lawsuit now?

Whether you are a general counsel managing global class actions or a solo litigant fighting for your small business or family, the wheels of justice grind slowly enough on a good day.  But what happens in the grip of a global pandemic, when the courts are closed?  Is the legal system an essential service or a luxury? How can we keep the gears turning without compromising public health and welfare, especially when live testimony and in-person juries are the cornerstone of our system?

Fortunately, the legal profession has risen to the challenge, from justices, judges, and lawyers to legal staff and service providers.  But every solution carries its own balance of risks and benefits.  We offer some practical tips below to help as we all find our way forward.  And who knows?  This crisis, like so many others, may inadvertently bring about innovations that take root long-term and improve the legal services industry for clients and practitioners alike.

Judicial responses to COVID-19 and its effect on litigation.

As state and federal executives have declared states of emergency in response to the coronavirus disease 2019 (COVID-19), courts across the country have imposed new rules and procedures designed to protect public health and welfare without shuttering the judiciary entirely.  For example, the United States Supreme Court has postponed oral arguments for the first time in over a century.  The highest state courts in Texas, New York, California, and many others have issued emergency orders directing their lower courts to curtail all in-person interactions and providing those courts with flexibility and discretion to craft their own rules and procedures to protect health and safety. 

Major changes during the pandemic include:

• Suspending jury trials;[1] 
• Prohibiting in-person proceedings for non-essential matters;[2]
• Disallowing non-essential filings in certain courts;[3] and
• Adopting remote proceedings through telephonic or videoconference platforms, including for bench (non-jury) trials and depositions.

The common trend across courts is the preference for conducting proceedings remotely rather than in person, for obvious reasons − social distancing is a key tool for fighting the spread of COVID-19.  To facilitate witness testimony through remote means, during court proceedings and depositions, courts have begun to issue special rules to fill gaps in existing laws or procedural rules that otherwise may have rendered remote testimony inadmissible.  The Texas Supreme Court, for example, directed lower courts to “Allow or require anyone involved in any hearing, deposition, or other proceeding [including witnesses and court reporters] … to participate remotely” and “consider as evidence … sworn testimony given remotely.”[4] 

These measures may make sense in response to a pandemic, but they also follow a broader legislative trend in recent years allowing remote performance of certain legal acts that traditionally had to be done in person.  For example, a 2018 Texas law permits remote notarial services, and signatories may now acknowledge documents before a notary via video.  Many practitioners are discovering these existing rules for the first time now that world events have elevated the need for such remote services. 

Best practices for remote technology.

Although there may be obvious benefits of remote legal proceedings in a pandemic, one must also consider the risks involved in any remote technology or service.  Familiarity with the technology platform is critical.  Participants should understand how to use it and have a plan for troubleshooting technical issues.  Key questions include: does the platform provide adequate security, both in terms of who has access and how data is stored?  Can those access rights be managed or limited, for instance if witnesses are excluded from hearing other testimony, or when certain topics are subject to heightened confidentiality? Does the platform offer private virtual “breakout rooms” for consultations between counsel and their clients, which are often necessary during court proceedings, mediations, or depositions?  Does the platform allow participants to display documents or other media to other participants?  Who has access to those materials?  Is the session being recorded? 

Counsel are encouraged to consult their specific court to ensure they understand the court’s procedures and expectations for remote proceedings.  For example, the Texas Office of Court Administration is providing all state court judges with licenses to host proceedings via the Zoom platform during COVID-19.  Many of the judges who have begun using the platform adopted new procedures for the submission of exhibits.[5]

Counsel should also assess potential privilege issues that remote proceedings might trigger.  For example, a web teleconferencing platform’s privacy policy may permit third party monitoring.  Could participants potentially waive privilege by engaging in attorney-client communications in a virtual breakout room, when the platform provider may be recording such conversations?  Surely, one would think that such third-party intrusion (or potential intrusion) should not jeopardize the attorney-client privilege, particularly under these emergency circumstances.  But law is often playing catch-up with technology, and courts have held in the past that third-party electronic monitoring may reduce a party’s reasonable expectation of privacy.[6]  Counsel are encouraged to address these issues on the front end by agreement with counterparties, and ultimately with the court, before engaging in remote proceedings to mitigate any risk of surprise claims later.

Fraud and abuse present another set of risks in adopting new technologies, and fraudsters are already taking advantage of the current crisis.  Criminals send “spoofed” emails that appear to come from co-workers, company executives, or government agencies like the Centers for Disease Control and Prevention (“CDC”), urging users to click links leading to malware or to transfer funds or sensitive information.  “Deepfake” audio and video take such scams to the next level – one company recently paid a fake vendor hundreds of thousands of dollars after receiving what they believed to be an urgent phone call from the company’s CEO.  In reality, the caller’s voice was an audio fake using artificial intelligence to reproduce the CEO’s voice from public clips available online.  As with most scams, the first line of defense is being aware they exist and encouraging adherence to basic rules of digital hygiene – use well-respected platforms, employ passwords to limit access, use antivirus programs, verify senders and links, exercise discretion and investigate before sending sensitive information or fees, and so on.  Also consider only adopting new technology – at least on this emergency basis – when needed.  Where longstanding, trusted methods are still available, like using existing filing systems for court communications rather than switching to email or chat, that can add an additional layer of consistency and reliability.

What can consumers of legal services expect?

Until the pandemic subsides and emergency rules are lifted, litigants should understand that the situation is dynamic and rapidly evolving.  While courts have acted to ensure that their essential functions continue, the reality is that adjudication of non-emergency matters will be delayed.  Fortunately, there are technology platforms that can facilitate remote court proceedings and depositions.  The extent to which the judiciary will continue to embrace remote proceedings after COVID-19 is uncertain.

While the toll of this crisis is immense, people have already noted an unexpected opportunity – the chance to find new and sometimes better ways to work.  That may apply in law as well, if this sudden testing of new technologies reveals better, faster, cheaper ways to resolve disputes. An oft-cited Churchill quote seems apt: “Never waste a good crisis.”  Some of these shifts in legal practice may lead to long-term efficiencies that benefit clients and improve access for those who need it. 

Find out more about the issues covered in this alert by contacting any member of DLA Piper’s Litigation group or your DLA Piper attorney.

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