Healthcare Transactions, Litigation & Alternative Dispute Resolution
At the Law Office of Kevin O’Mahony, we serve as outside counsel for hospitals, health systems, medical practice groups and other healthcare entities and professionals, in both transactional and litigation or potential litigation matters. We also provide regulatory advice to healthcare providers, entities and businesses in, or serving clients in, the healthcare industry.
We advise clients on compliance with Anti-Kickback, Stark, False Claims, Fraud & Abuse, HIPAA, and other ever-changing laws and regulations, such as the Affordable Care Act, that impact the negotiation and structure of healthcare transactions. We provide guidance in identifying, minimizing and addressing potential regulatory compliance issues, such as anti-kickback, self-referrals, privacy and security, managed care reimbursement and overpayment, accreditation, credentialing and reporting, as well as investigations and audits.
We represent healthcare providers and industry partners in a wide variety of cases, including business and contract disputes, non-compete litigation, managed care disputes, medical staff representation, tort and antitrust claims, administrative litigation, healthcare fraud, Stark, Anti-Kickback and False Claims Act cases, intellectual property, reimbursement and insurance coverage claims.
Our firm also conducts investigations of unanticipated adverse patient outcomes and medical malpractice claims. And we represent and defend hospitals, physicians, physician assistants, nurse practitioners, nurses and other healthcare entities and staff, in medical malpractice lawsuits in state and federal courts, and administrative, licensing board, hospital committee, arbitration, mediation and alternative dispute resolution proceedings.
We are a healthcare and business law firm focused on helping healthcare providers, professionals and businesses succeed within the bounds of the law. We advise and represent hospitals, physicians, medical groups, equipment suppliers, healthcare professionals, consultants and other healthcare industry businesses in Alpharetta, Atlanta, Cumming, Duluth, Johns Creek, Norcross, Roswell and across the state of Georgia.
We invite you to visit the other practice area pages of this website for additional information regarding our legal services and the ways we can help you. Please contact us by phone or email if you need legal advice or assistance in any of these areas.
The COVID-19 Pandemic’s Impact on Healthcare Transactions
(This section is adapted from an April 2, 2020 Briefing by the American Health Law Association’s Transactions Affinity Group of the Business Law and Governance Practice Group, authored by Torrey McClary and Ranee Adipat of King & Spalding.)
The novel coronavirus/COVID-19 pandemic continues to challenge hospitals and other healthcare providers to prepare for surges of people infected with the virus, while still treating patients already in their facilities and admitted for other reasons. Higher-margin operations such as elective surgeries have been halted to make beds and resources available as the pandemic spreads, and as providers prioritize their capacity to quickly and efficiently triage, test and treat COVID-19 patients. Healthcare providers continue to fulfill their patient-care missions despite shortages of beds, equipment and supplies, an overstressed and often at-risk workforce, and rapidly deteriorating financial conditions. These efforts are being managed by leadership teams often stretched thin by competing demands, who must continue to ensure their organizations comply with constantly evolving governmental rules and regulations.
Even the manner in which care is provided has changed dramatically in a very brief period, including (1) exponential increase in the use of telemedicine in many areas and accompanying relaxation of regulations governing its use and reimbursement, (2) interest by some in concierge medicine and other “prioritized” access points to obtain tests and treatment (in some cases in a manner not otherwise available to the broader population), and (3) consideration of previously unimaginable measures, such as ventilator rationing or sharing, and universal “do not resuscitate” orders for COVID-19 patients. These changes and the new legal, ethical and moral issues they present will necessarily have long-lasting implications for the way healthcare is delivered in the future. For providers that possess the skills and resources necessary to handle the evolving needs of their patient populations and weather the crisis, the post-COVID-19 world will likely present new challenges and opportunities.
It is already clear that the health care sector — from physician groups and ancillary service providers, to hospitals, health systems and healthcare companies — will be hard hit by the pandemic. With no certainty as to when life in the United States will normalize, industry experts are scrambling to evaluate the potential impact of the COVID-19 outbreak on the healthcare sector and speculate as to what the post-pandemic world might look like for financially weakened providers.
While some pending transactions already close to closing in Q1 2020 did close, many others have been placed in a holding pattern, indefinitely postponed or canceled, as hospitals attend to the imminent needs of communities impacted by the pandemic. Industry observers report anecdotally that there continues to be relatively robust activity in the identification and negotiation of transactions involving core hospital assets, including acquisitions, investments, and joint ventures involving strategically important hospital partners. Hospitals will likely continue to pursue large-scale mega-mergers and similar combinations and affiliations, strategic transactions with physicians, including physician acquisitions with hospital employment, competitively significant deals (meaning a competitor would seize the opportunity if the provider does not act), arrangements that furnish access to beds and resources necessary to treat the anticipated increase in COVID-19 patients, and other mission-critical transactions, subject to delays and modifications as a result of pandemic variables, as discussed in more detail below.
For healthcare providers continuing to engage in strategic planning for the immediate and long-term success of their systems, several factors are impacting whether and how deals are getting done during the pandemic. An initial gating item has been the limited resources and staffing available to support transaction planning and execution. In the current crisis mode, hospital leaders are dealing with more immediate and pressing considerations such as accessing beds and space for current and anticipated COVID-19 patients, protecting and securing their physicians and workforce, obtaining supplies for testing and treatment, funding critical core activities and healthcare operations, evaluating medical ethics issues, and monitoring evolving rules and laws that impact how treatment can be provided and reimbursed. The unknown duration and economic impact of the crisis on the economy, and on healthcare enterprises specifically, creates uncertainty about the financial health and viability of potential transaction parties. Market volatility also calls into question the use and applicability of methodologies for valuation opinions to confirm reasonable and fair market consideration, which is especially relevant for healthcare transactions that may implicate Stark and anti-kickback rules.
On March 30, 2020, the Centers for Medicare & Medicaid Services authorized waivers of certain Medicare, Medicaid and Children’s Health Insurance Program requirements and conditions of participation under Section 1135 of the Social Security Act (blanket waivers) under the physician self-referral law for enumerated “COVID-19 Purposes.” How the blanket waivers will affect hospital and physician relationships, and any resulting changes in methodologies used for valuation opinions, will continue to evolve as the arrangements are put into place under these new rules. (Please see our Stark, Anti-Kickback, Civil Monetary Penalty & False Claims Act Issues webpage for additional details regarding COVID-19 Fraud Enforcement.)
Transaction Financing Concerns
Quickly dwindling cash reserves and lack of access to capital can hamper a potential acquiror’s ability to finance transactions, both to pay an upfront purchase price and to support the capital and operating commitments that often replace outright cash consideration in member substitutions, joint operating arrangements, or similar transaction structures. Insecurity regarding the availability of capital can jeopardize the integration that is often necessary when systems combine or partner to execute on a transaction, such as funding electronic health record and other technology platform migrations, capital expenditures that are deferred during the crisis, and other identified joint strategic objectives. The impact of sustained revenue loss and increased expenses resulting from the pandemic may be potentially ameliorated by hospitals’ access to future government-designated funds and other support for COVID-19 care, including as a result of new legislation such as the Coronavirus Aid, Relief and Economic Security (“CARES”) Act, which created a $100 billion fund for providers. The fund includes reimbursement of lost revenue attributable to COVID-19, although there is some question as to whether lost revenue for procedures that have been delayed, but will be performed at a later date, are eligible for reimbursement given the fund is not intended to cover losses and expenses that have been or will be reimbursed from another source. This uncertainty regarding availability of capital and access to government funds in the future may cause transaction parties to question their viability on both a standalone and combined basis.
Regulatory & Third-Party Approvals
Because the healthcare industry is highly regulated, transactions often require governmental entity approvals, including from licensing agencies, state and federal antitrust authorities, government programs, attorneys general, and other public agencies and healthcare regulatory bodies. In some cases, regulators are actively prioritizing COVID-19-related approvals, such as recent guidance by the Department of Justice Antitrust Division and the Federal Trade Commission providing for expedited antitrust review (within seven calendar days of receiving all necessary information) of “collaborations of businesses working to protect the health and safety of Americans during the COVID-19 pandemic.” Some agencies have been able to move forward with their processes notwithstanding shelter-at-home and similar limitations, in particular to facilitate transactions that result in immediate solutions to pandemic challenges such as leasing shuttered hospital space to increase COVID-19 treatment capacity. However, there has been some slowing and delay in governmental responses to non-urgent matters, including those that may be necessary for a deal to move forward or close.
Significant transactions that involve a change of control of an enterprise typically require consents to assignment and other accommodations by third parties such as lenders, contract parties, payors, suppliers and vendors, landlords, and labor unions. Major deals involving nonprofit health systems and academic medical centers entail coordination and buy-in from many stakeholders within the organization, such as boards of directors or equivalent governing bodies, physicians, employees, and faculty. In the current period of crisis, the attention of these stakeholders is often being diverted as these parties address the more pressing matters of the health and safety of patients, employees, and constituents, and the stability and viability of their own businesses.
The coordination and resource-intensive process and commitment involved in executing on a major transaction can be challenging, and in some cases may prove to be impossible, in a pandemic situation. Hospital transactions may not completely come to a halt during this time; deals that are already close to completion, that involve distressed assets, or that create solutions for the diagnosis and treatment of COVID-19 patients may go forward in the coming weeks and months. However, there may be a delay in the announcement and implementation of less developed and non-critical transactions, which may result in a surge in hospital M&A and other deal activity once the pandemic is over.
A Potential Shift in Transaction Targets
After the immediate push for ICU beds and COVID-19-related care passes, potential transaction parties may be looking for new types of partners and deal structures. The trend for the last few years has been a move away from standard M&A or “marriage” by merger or acquisition towards more creative non-M&A structures. The COVID-19 crisis will likely propel that trend forward at an accelerated pace. In addition, the pandemic may create interest in certain types of targets, such as ambulatory surgery centers (“ASCs”), telemedicine companies, or urgent care centers, depending on how services are restructured and how reimbursement shifts during the next few months. For example, on March 20, 2020, the Ambulatory Surgery Center Association published guidance stating, “[t]raditional hospital services may soon lead to federal and state government decisions to use ambulatory surgery centers to support the healthcare system in expanded surgical use and new ways during the pandemic.” Further, the Association published on its website a list of scenarios in which ASCs could be “activated to help handle surgical overflow from hospitals that are at treatment capacity due to COVID-19.”
Deal Process & Due Diligence
Doing deals during the pandemic creates challenges in the transaction process and execution. Predictably, shelter-in-place and stay-at-home orders have resulted in increased reliance on virtual meetings. Providers have skeleton legal teams, if any, at their facilities. Zoom, Webex, FaceTime and other platforms are being used to connect people in an unprecedented volume. Because many systems and providers had already migrated towards virtual meetings even during normal business operations, employees are more familiar and quicker to embrace virtual meetings, which can offer convenience and flexibility. Technology, however, will never fully replace in-person connections, so strategic leaders may not be able to easily ascertain whether there is cultural compatibility with a potential transaction partner. In-person meetings can be essential to establishing trust, and when negotiations hit a standstill, in-person meetings can pave the way to resolve key issues. Parties, however, will make do with virtual options for now and re-engage in person when it is safe to do so.
For many potential acquirers, use of virtual datarooms in M&A has been the norm for years, but for nonprofit, safety net, or other hospitals with less capital available for investment in new technology, the move towards virtual negotiation and due diligence for transactions may have lagged. Some target hospitals and providers, especially older or more rural facilities, may not currently have their contracts and other documentation online in an easily available or organized manner. When that hospital becomes a target of an acquisition and undergoes due diligence, someone at the facility often must locate, scan, and upload all of their contracts to virtual datarooms for the first time. For some targets, this may slow down or preclude the due diligence processes if staff are preoccupied with COVID-19 issues or are not in the office due to stay-at-home orders.
Providers of virtual dataroom services, including Merrill Corporation, Donnelley Financial, and Intralinks, are seeing an increase in the creation of online datarooms to anticipate a surge in M&A once the market stabilizes. These companies report that their M&A clients are starting to use virtual datarooms to store and share files among dispersed employees because of security concerns. An upside of this trend is that it may make it easier to organize and undergo due diligence later if relevant contracts and documentation are already stored in a repository. One virtual dataroom executive optimistically predicts that the “volatility will end and the deal market will come roaring back, and what we’re seeing is that our companies are preparing for that.”
In addition, buyers may need to shift their due diligence focus to assess the risk of COVID-19 on the target business. This includes, of course, long- and short-term impact on the target’s financial and operational viability, but also a more thorough review of insurance policies related to business interruption, plans to address crisis management, supply chain risk (ranging from potential availability of face masks and scarce ventilators, to production or shipment for new COVID-19-related equipment), effective protocols for high-risk employees, and Health Insurance Portability and Accountability Act and other privacy concerns. Provisions addressing inventory assessments, monitoring, and sufficiency may take on increased importance in the negotiation of purchase agreements. Performing due diligence related to the ability of a target to conduct operations remotely may also become a new area of focus.
On the other hand, COVID-19 challenges may force some buyers to do less robust and more “high-level” diligence. Buyer and seller workforces are stretched thin, sellers may be becoming distressed to the point of insolvency, and buyers may not be able to undertake a deep a dive into due diligence materials. This may result in adjustment of the amount of risk buyers are willing to take on and could potentially impact transaction structure. In light of the uncertainty and increased risk, transaction parties may modify deal structures to streamline processes, prioritize quick timing, or re-allocate post-closing risk.
Representations & Warranties
In a typical transaction, each party will make representations and warranties to the other about matters such as its due authorization to enter into the transaction, compliance with healthcare laws and other applicable regulations, the condition of its assets, operations and finances, and many other areas that relate to the well-being of the enterprise and its existing and potential liabilities. The representations and warranties are often qualified by knowledge and materiality and are accompanied by disclosure schedules that elaborate on or clarify the representation (such as a list of owned assets and properties) or disclose exceptions (such as known compliance problems). These terms are highly negotiated because they can shift risk from the disclosing party to the other party and require the disclosing party to indemnify the other party for costs and damages related to any failure of the representation and warranty to be true.
As transactions continue to be negotiated in the current pandemic environment and its aftermath, it is likely buyers and other transaction partners will seek to modify traditional representations and warranties or create new ones to address areas impacted by the COVID-19 outbreak, such as solvency, sufficiency of inventory and assets, liabilities not disclosed in financial statements, absence of changes to the business since the last audited financial statements, and the like. Given that these provisions are subject to negotiation by the parties and are impacted by the parties’ relative leverage and other variables, the terms may vary substantially until standard terms are developed and adopted as “market” by the sector.
In the case of transactions that have been signed, but not yet closed, one or both parties will need to “bring down” the representations and warranties as of closing, meaning those provisions must still be true, or true in all material respects, as of the closing date as a condition of the other party’s obligation to close the deal. However, as a result of the COVID-19 outbreak, representations regarding operations, financial viability, or even data privacy, may no longer be accurate due to the massive changes in hospital operations resulting from the pandemic. In bringing down representations and warranties to closing, the parties will need to carefully review each one to confirm whether additional disclosures or exceptions will be necessary, and how newly identified liabilities and risk will be allocated. In addition, a failure to bring down representations and warranties sufficiently to meet negotiated conditions to closing could trigger a termination or walkaway right.
Representations & Warranties Insurance
Use of representations and warranties insurance for transactions with target healthcare providers, especially nonprofit health system and hospital transactions, has been growing due to increased availability of such insurance over the past decade. However, representations and warranties insurance for healthcare company transactions can be more expensive as compared to other industries because of the heavy regulatory involvement and government payment implications of a potential breach of a representation or warranty. Nonetheless, post-COVID-19, obtaining such insurance may become a more palatable option due to the unprecedented market conditions, uncertainty, and resulting risk to buyers. According to industry experts, there is a trend towards representations and warranties post-COVID-19 carving out risks such as business interruption, operations disruption, supply chain disruption, and resulting losses. Some representations and warranties insurance carriers are currently creating lists of specific industries and classes of businesses where the insurer would require an upfront exclusion for business interruptions related to COVID-19 to provide insurance. Other insurance carriers may require a blanket COVID-19 exclusion to provide coverage, though this may change as the pandemic continues its course and may be subject to negotiation on a case-by-case basis.
Another trend is the carve-out of COVID-19-related losses from the definition of insurable “Loss” such that the burden shifts to the buyer to show that the loss was significant enough to trigger indemnification. It is unclear at the moment if there will be additional due diligence required by insurers for the purposes of obtaining such insurance. Some in the market caution, however, that those buyers relying on representations and warranties insurance should not fully rely on such insurance to cover all downside risks related to COVID-19.
Material Adverse Effect & COVID-19 Carve-outs
A material decline in a target’s business prior to the closing of a transaction can trigger the termination of the transaction through a material adverse effect (“MAE”) or material adverse change clause. These clauses are often highly negotiated and can allow a buyer to walk away from its obligations under a purchase agreement or other definitive agreement, with little or no compensation owed to the seller. An MAE termination provision requires that the event or change be unforeseeable at the time the parties entered into the agreement and must exist over a long period of time (such as years).
An MAE definition typically includes a change or effect that would have or would reasonably be expected to have a material adverse effect on the target’s business, finances, or assets. Parties often negotiate other specific exclusions to the MAE concept, meaning the buyer cannot walk away if a material adverse change results from the excluded circumstance. Depending on the timing of current transactions and whether definitive agreements have been entered into prior to the pandemic, there is a possibility that COVID-19 may trigger contractual walkaway rights under an MAE. Going forward, sellers may insist on carving out the effects of COVID-19 and anything related to it from the definition of an MAE, or insist on including the impact of COVID-19 only if it disproportionately impacts the target compared to similarly situated businesses. This would result in a walkaway right for a buyer if, for example, a hospital target (for whatever reason) has been disproportionately affected by COVID-19 as compared to other hospitals in its demographic/service area between signing and closing.
Despite the widespread use of MAEs in M&A and other corporate contracts, no Delaware court prior to 2018 had allowed a buyer to terminate a transaction based on an MAE, even though Delaware has been the most important jurisdiction in U.S. corporate law since the early 20th century. In the recent landmark decision Akorn Inc. v. Fresenius Kabi AG, the Delaware Supreme Court in a unanimous decision upheld the lower court’s decision to allow Fresenius, a German pharmaceutical company, to declare an MAE to terminate a $4.8 billion merger with Akorn. The lower court did not clarify the standards for finding when an MAE allowed a termination, though it “observed that in most cases, where decreases in profits were 40% or higher, a MAE existed.” The court, however, found that Akorn sustained both (1) a “general MAE under the agreement because it experienced a severe decline in business performance over time that a reasonable buyer would find material,” and (2) a “regulatory MAE” based on breach of the regulatory representations and warranties, where Akorn misrepresented its compliance with regulatory requirements. Further, despite widespread regulatory compliance problems, Akorn failed to “adhere to its promise to use ‘commercially reasonable efforts’ to operate in the ordinary course of business ‘in all material respects.’” This was evidenced by the fact that, “[a]fter signing the merger agreement, Akorn cancelled regular audits at four sites in favor of audits that would not search for deficiencies, and Akorn senior management instructed its IT department to halt spending on data integrity projects and submitted fabricated data to the FDA.” Akorn is an extreme example, but Delaware’s upholding of an MAE to support a buyer’s right to terminate a merger contract is a potentially significant development relevant to hospitals and health systems considering entering into agreements in a precarious economic environment. Parties should include clear language addressing any MAE terms and corresponding rights related to COVID-19 circumstances.
Force Majeure & Impossibility of Performance
Another contractual concept that is receiving increased attention during the pandemic is the force majeure provision, which can excuse performance of a contract in the event of extreme circumstances. The provision typically requires the occurrence of unforeseen events like natural disasters, terrorism, or war, and the event itself must be a direct cause of the party’s inability to perform. Some force majeure clauses explicitly list pandemics as a qualifying event for nonperformance, whereas as others contain more vague descriptions that could encompass the COVID-19 outbreak, such as “events beyond a party’s control” or “acts of government.” In the event of a force majeure, a party may have an actual or implied duty to mitigate its effect or seek alternate means of performance. Careful drafting and negotiation of force majeure provisions that specifically include (or exclude) medical pandemics will take on greater importance in healthcare transactions that are negotiated going forward.
Other COVID-19-Related Agreement Terms
Transaction agreements often include an outside date or “drop-dead date,” defined as some date in the future which, if the closing has not occurred by such date, triggers a right to terminate the agreement. The intent is to give parties an incentive to move quickly to close the transaction or to allow a seller to move on and seek alternative buyers or partners if the transaction does not occur in a timely manner. If parties have entered into a transaction agreement prior to the pandemic, they may need to revisit the drop-dead date; parties entering into new agreements may want to include automatic extensions or extremely generous (i.e., very far in the future) outside dates to allow time for the pandemic to resolve.
Other potentially evolving terms include requiring the seller to identify and convey new or additional assets (outside of the originally contemplated assets) that could or would need to be transferred to handle the virus’ effects, such as alternative work sites or technology contracts to provide for remote work. Parties may also consider adding pre-closing operating and other covenants specific to COVID-19 risks and operational impact on the business. These could include a duty to mitigate the impact of the virus using commercially reasonable efforts (or another agreed upon legal standard) or promise to cooperate with third parties in the provision of COVID-19 care. Buyers may request that the seller continue to adequately support target operations through closing and potentially thereafter until business continuity functions can be transferred to buyer. Parties may also negotiate for an optional transition services agreement which, depending on the status of target operations and levels of the pandemic’s impact on the target at closing, allows a buyer to opt in for transition services for some set or renewable period of time. The parties may also choose to negotiate specific provisions regarding contingency plans depending on various anticipated enumerated scenarios relating to the pandemic’s trajectory and resolution.
It may become increasingly common to see a hospital or health system negotiate and request these protective and risk-mitigating provisions as a buyer. It is too soon, however, to tell which concepts will become standard in healthcare M&A in the post-COVID-19 era, and what language will become “market” remains to be determined.
It is impossible to predict the ultimate impact the COVID-19 pandemic will have on healthcare providers and transactions in the hospital sector, given (1) the volatility of the market; (2) uncertainty regarding access to capital; (3) unpredictability regarding the spread of COVID-19 (including any resurgence if the virus is contained) and timing for a cure or vaccine; (4) unknown consequences of widespread disruption to hospital operations, supplies and finances; and (5) the potential scope and limitations of the government’s response and availability of committed funds. It is extremely likely that many hospitals and their transaction partners will hit the pause button on transactions as they attend to their missions to treat and protect their patients and communities. It is also possible that deal making will vary on a market-by-market basis as the conditions and impact of the COVID-19 pandemic differ across geographies and political, social and economic circumstances. In the meantime, as COVID-19 transforms the way health care is accessed, provided, and reimbursed, there may be new and unique opportunities for health system growth and partnership in the future. Once the dust settles, we can expect that doing healthcare deals, like the provision of healthcare itself, will never be the same.
COVID-19’s Impact on Litigation
The outbreak of COVID-19 is affecting litigation in various ways, ranging from an increased use of remote hearings to general court closures. The following is a brief overview of key measures being taken. The challenges facing everyone involved in litigation during this period are unprecedented. As the authorities and institutions react, new measures are being put in place almost daily. We will update this summary to include additional changes as frequently as possible. But in the meantime, if you have specific questions regarding the impact of the measures on existing or new cases, please contact us.
Both the federal government and state and local governments have issued guidance (and sometimes orders) asking or directing Americans to avoid social gatherings of more than ten people, limit discretionary travel, and wear protective masks when they have to be in public places while the public health state of emergency exists. Other health measures are also being implemented.
- The Administrative Office of the U.S. Courts, which has put together a task force to share information and guidance, has told all federal courts to make preparations for the pandemic by replacing meetings with teleconferences and requiring staff to stay home at the first sign of symptoms.
- In the U.S. Supreme Court, oral arguments were postponed for the March the 23-25 and March 30-April 1, 2020 sessions. On March 12, 2020, the court closed to tourists until further notice. But the building remains open for official business. And, with the justices separated by the coronavirus pandemic, the U.S. Supreme Court conducted its first-ever oral argument by telephone conference call on May 4, 2020, making history surprisingly smoothly. Because the court building has been closed since mid-March, decisions will be posted on the court’s website, not distributed at the court.
- Other appeals courts introduced similar measures. For example, in the Federal Circuit Court of Appeals, all cases scheduled for the April 2020 session were conducted remotely, and that is expected to continue for some time. The emergency steps included closing the courthouse to the public, having most staff work remotely and holding oral arguments by telephone. No date has been set for resuming in-person arguments, and cases have been moving as fast, if not faster, than usual, according to the Circuit Executive and Clerk of Court.
- On May 1, 2020, the U.S. District Chief Judge for the Northern District of Georgia issued an order continuing the suspension of civil and criminal jury trials, grand jury proceedings and jury summonses in the Northern District of Georgia through May 29, 2020.
- The judicial authorities in individual states are taking different approaches. Some have made no significant changes to their operations, while others have made substantial changes.
- Courts in many states, including at least some in Georgia, suspended jury trials indefinitely.
In the U.S., even before the pandemic, it was fairly common for at least some lawyers to appear at court hearings by telephone when in-person appearances were not required by judges or court rules. However, most lawyers would normally limit telephone appearances to non-substantive court hearings (like a scheduling conference). Now, with the pandemic and the courts’ encouragement (if not insistence), we have started to use the telephone for substantive motions as well.
On May 4, 2020, for the first time in its 231-year history, the U.S. Supreme Court heard oral arguments through a telephone conference call, allowing the attorneys to present arguments while complying with shelter-in-place orders. The non-visual nature of the telephone conference necessitated procedural changes to how the Justices and arguing attorneys could interact, requiring additional oversight by Chief Justice Roberts to direct the questioning and attempt to avoid inevitable cross-talk and instances of dead air by either the Justices or the arguing attorneys. Given the indefiniteness of the COVID-19 pandemic, that oral argument is serving as a model and prototype for future oral arguments conducted telephonically in the federal appellate courts.
As with many of the changes implemented by the courts to adapt to the COVID-19 pandemic, oral arguments presented over conference calls will create both problems and opportunities. Practitioners set to argue via conference call need to take extra care to make sure their technology is sound and the audio quality is sufficiently high, and to allow extra time before speaking to avoid potential interruptions. However, some of the necessary changes may also provide unanticipated advantages over current norms. As courts continue to hear oral arguments telephonically and revise their procedures, the arguments will hopefully become increasingly productive and some of the changes being implemented may continue even after the pandemic abates.
Changes in Georgia Courts Due to Pandemic
In Georgia, the Supreme Court of Georgia’s Chief Justice Harold Melton declared a statewide judicial emergency on March 14, 2020, suspending most nonessential court operations. In response to the Chief Justice’s declaration of a statewide judicial emergency, the Supreme Court of Georgia also issued a suspension of all filing deadlines while the emergency declaration order is in place. On May 4 and 11, 2020, Chief Justice Melton extended that emergency order through June 12, 2020. (The May 11, 2020 Order can be read here.)
On May 21, 2020, the Supreme Court of Georgia issued a press release regarding restarting its cases and reinstating filing deadlines. Included in the press release were links to samples of orders and certificates, and information about adding a new temporary Rule 11.1 “Filings Affected by Judicial Emergency Orders,” effective May 28, 2020. (You can view the press release here.) The new orders recognized that most of the deadlines imposed by the court’s rules pertain to the e-filing of written documents rather than proceedings requiring in-person contact.
First, the court entered a specific order in almost every pending case to reinstate all deadlines under the court’s rules that were “tolled” or suspended by Chief Justice Melton’s March 14, 2020 order declaring a statewide judicial emergency, as extended on April 6 and May 11. These new orders did not revoke the extension of deadlines for initially filing new proceedings in the court, including appeals, but only affected proceedings filed prior to the March 14 emergency order. The statewide judicial emergency — which continued the suspension of all civil and criminal jury trials and barred courts from summoning and impaneling new trial and grand juries — remained in place through at least June 12, 2020.
Effective May 28, parties in pending cases have the same amount of time to submit their filings as they had remaining at the time the March 14 emergency order went into effect. Parties are required to submit a “Certificate of Timeliness” with each filing to show the calculation of the new filing deadline. Parties may file a motion for reconsideration or seek extensions of time for good cause related to the COVID-19 pandemic or otherwise.
Second, a specific order will be issued in almost all new cases docketed in the court on or after May 28, 2020, directing that the normal deadlines under the court’s rules will be in effect and will not be subject to tolling or extension under the emergency order, although parties may seek extensions of time for good cause related to the COVID-19 pandemic or otherwise. Additionally, the court amended its rules on May 21 to add a temporary new Rule 11.1 (Filings Affected by Judicial Emergency Orders), effective May 28, to allow the court to determine that new proceedings have been timely filed. The rule requires parties to attach a Certificate of Timeliness to filings affected by any statewide or local circuit judicial emergency order, showing the calculation of the new filing deadline. This rule was to expire in 180 days unless extended.
Previously, in April 2020, the Supreme Court of Georgia instituted oral arguments via Zoom. The Georgia Court of Appeals also recently followed suit with Chief Judge Stephen Dillard presiding in the courtroom at the downtown Judicial Center while Judges Brian Rickman and Trent Brown and counsel joined in remotely. And Georgia’s appellate courts have continued to hear arguments remotely since then.
The Georgia Council of Superior Court Judges also proposed amending a court rule to permit non-jury civil trials as well as civil pretrial proceedings to be conducted by remote video conference. Specifically, the Georgia Council of Superior Court Judges proposed to amend its current uniform rules to allow civil non-jury trials to be conducted by video conference. The proposal, drafted as an amendment to Rule 9.1 of the Uniform Rules of Superior Court, would allow video conference trials only in cases where a constitutional right to trial by jury does not apply, or where the parties have waived their right to a jury trial.
Rule 9.1 permitted telephone, but not videoconferencing, and only for pretrial or post-trial proceedings in civil actions. The Supreme Court of Georgia temporarily amended the rule on March 27, 2020 to permit the use of video conferences as well as telephone conferences for the duration of the statewide judicial emergency. And Rule 9.2 now permits many matters to be conducted by videoconference.
The draft amendment, if approved by the Supreme Court, is supposed to remain in effect for 180 days after the current judicial emergency expires. Accommodations are to be made to preserve privileged attorney-client communications. To ensure that a video trial would be accessible to the public, notice must be given to the parties and the public that a proceeding will take place by remote video conference. The public would be provided the opportunity to view the video conference either by joining it through a live video stream or other similar means.
The amended rule would give the courts the ability during the judicial emergency to get more done effectively than they otherwise could. Trial lawyers generally like jury trials, but support anything that will move civil cases along with respect to discovery, motion practice and ultimately the resolution of cases. Most believe that video conferencing makes perfect sense for at least non-jury trials where the parties all agree.
As of May 22, 2020, the Georgia proposed rule, which would allow judges to conduct non-jury civil trials by videoconference, had prompted more than 200 comments, including multiple letters from organizations representing hundreds of lawyers whose practices include civil litigation. The organizations offered qualified support for the temporary rule, but identified several potential hurdles about virtual trials. Attorneys raised questions about attorney-client confidentiality, basic constitutional rights, witness influencing and adequate access to workable technology if the state proceeds with the proposal to allow civil non-jury trials to be conducted by video to stem the growing backlog caused by COVID-19. The Supreme Court of Georgia must approve the rule before any changes are made.
In a May 28, 2020 press conference, Gov. Brian Kemp issued an executive order stating that he was extending the public health state of emergency to July 12, 2020. Importantly, all healthcare provider and hospital-related exceptions were also extended with this executive order. It therefore seemed likely that the Georgia courts would continue to operate in a limited, more safety-focused fashion through at least July 12, 2020 as well.
On June 12, 2020, the Order from Supreme Court of Georgia Chief Justice Harold Melton declaring a Statewide Judicial Emergency, which would have expired on Friday, June 12, 2020, was further extended until Sunday, July 12, 2020. The original March Order had already been extended twice, with modifications, by orders issued on April 6 and May 11, 2020. The June 2020 order stated in part:
After consulting with the Judicial Council of Georgia, the Judicial COVID-19 Task Force, and other judicial partners, and recognizing again that most in-court proceedings compel the attendance of various individuals rather than allowing them to decide how best to protect their own health, it is hereby determined that the Order should be extended again, but with significant modifications.
The June 2020 order anticipated reimposing, as of July 14, many legal deadlines on litigants in civil and criminal cases and in administrative actions that have been suspended, tolled or extended since March. Jury trials and most grand jury proceedings remained suspended, and jury proceedings were deemed unlikely to begin until August or later. Deadlines imposed on courts also remained suspended because of the already large backlog of pending cases. (The June 12, 2020 Order can be read here.)
On June 12, 2020, the Judicial Council also published guidelines for reopening Georgia courts that outline general practices to ensure the health and safety of court employees and the public. The guidelines include general infection control measures the courts should undertake, including limiting room capacity, temperature screening at entry, requiring all employees and the public to wear masks inside court facilities, staggered scheduling, and continued use of virtual hearings via Zoom, YouTube or Facebook. (The Judicial Council’s COVID-19 Court Operating Guidelines can be viewed here.)
On June 29, 2020, Gov. Kemp signed two more executive orders extending the Public Health State of Emergency and existing COVID-19 safety measures. Executive Order 06.29.20.01 extended the Public Health State of Emergency through August 11, 2020. Executive Order 06.29.20.02 continues to require social distancing, bans gatherings of more than fifty people unless there is six feet between each person, outlines mandatory criteria for businesses, and requires sheltering in place for the medically fragile. (The executive orders can be accessed here.)
On July 16, 2020, Governor Kemp also extended the “Empowering a Healthy Georgia” executive order until July 31. The order was originally set to expire on July 15. As in the previous executive order, Georgians were directed to practice social distancing and were encouraged to wear face coverings. The order also required sheltering in place for the medically fragile and those living in long-term care facilities.
Similarly, on July 10, 2020, Chief Justice Melton issued a fourth order, extending the statewide judicial emergency through August 11, 2020. This order authorized courts to move forward with all judicial proceedings, except criminal and civil jury trials and most grand jury proceedings, as long as the courts can legally, safely and practicably do so. Courts were encouraged to use technology for proceedings, but where that cannot be accomplished, any in-person proceeding and the court facility in which it is to be held must be in compliance with safety guidelines set out in the order. Those guidelines basically require Georgia judges to adhere to COVID safety directives put in place by the state health department and CDC in an effort to stem the coronavirus’ spread.
As a result, Georgia’s courthouses have generally remained closed to date. But the Chief Justice’s fourth order reinstated deadlines for civil and criminal cases, and restarted the deadline clock for litigation tolled March 14 to resume ticking on July 14, except for jury trial proceedings. This was expected to get cases moving faster, trigger judicial status conferences, increase motion practice, and help hasten case resolution.
On July 31, 2020, Governor Kemp signed two more executive orders extending the Public Health State of Emergency and existing COVID-19 safety measures. Executive Order 07.31.20.01 extended the Public Health State of Emergency through September 10, 2020. The Public Health State of Emergency allows for enhanced coordination across government and the private sector for supply procurement, comprehensive testing, and healthcare capacity.
By renewing the applicability of existing language, Executive Order 07.31.20.02 continued to require social distancing, banned gatherings of more than fifty people unless there is six feet between each person, outlined mandatory criteria for businesses, and required sheltering in place for those living in long-term care facilities and the medically fragile, among other provisions. The order ran through August 15, 2020.
On August 11, 2020, for the fifth time since mid-March, Chief Justice Melton extended for another month the Statewide Judicial Emergency that he first announced March 14, 2020, in response to the COVID-19 pandemic. “[R]ecognizing again that most in-court proceedings compel the attendance of various individuals rather than allowing them to decide how best to protect their own health, and further recognizing that the novel coronavirus continues to spread in Georgia, it is hereby determined that the Order should be extended again,” the August 11 order says.
As previously, jury trial and most grand jury proceedings are still prohibited. However, this latest order by the Chief Justice makes clear that, “This broad prohibition cannot last too much longer, even if the pandemic continues, because the judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by indictment and trial. Accordingly, the COVID-19 Task Force is focusing on how grand jury and jury trial proceedings could safely be conducted even where levels of COVID-19 are high, including the possibility of conducting grand jury proceedings and jury selection remotely.”
Under Georgia law, the Chief Justice is authorized to extend the emergency in 30-day increments, and this time it was extended until September 10, 2020. The provisions of the August 11 order were identical to the July 10 extension order that expired on August 11, with a few minor revisions.
“As has been the direction since the original Order, all Georgia courts must continue to conduct proceedings, remotely or in-person, in compliance with public health guidance, applicable statutes and court rules, and the requirements of the United States and Georgia Constitutions, including the public’s right of access to judicial proceedings and a criminal defendant’s rights to confrontation and an open courtroom,” the August 11 order says. “All courts should continue to use and increase the use of technology to conduct remote judicial proceedings as a safer alternative to in-person proceedings, unless required by law to be in person or unless it is not practicable for technical or other reasons for persons participating in the proceeding to participate remotely.”
The August 11 order noted that Georgia courts have continued to perform “essential functions despite the pandemic. In an effort to return to more robust court operations, many of the deadlines imposed by law on litigants in civil and criminal cases that had been suspended, tolled, or extended since the initial March 14 Order were reimposed as of July 14, allowing more pending and newly filed cases to move forward in the judicial process.” (The August 11, 2020 Order can be read here.)
On August 31, 2020, Governor Kemp extended the coronavirus restrictions that set forth how businesses can operate during the pandemic. The Governor’s August 31 order continued to ban gatherings of more than 50 people unless social distancing is in place, and requires Georgians in long-term care facilities or those deemed “medically fragile” to shelter in place. The order also renewed rules that empower local governments to impose mask requirements, though the Governor has opposed a statewide mandate for face coverings. The August 2020 order expired and was replaced with new, similar orders on September 15 and 30, 2020, continuing the Public Health State of Emergency and existing COVID-19 safety measures. (The executive orders can be accessed here.)
On September 10, 2020, Chief Justice Melton issued another order extending the statewide judicial emergency until October 10, 2020. Consequently, in-person jury trials still cannot be held, but grand juries may reconvene “if doing so can be done safely and in compliance with public health guidance based on local conditions.” The Chief Justice hopes to allow jury trials to resume under his next order, expected on October 10, but because of the time it takes for summonses to be issued, jury trials are not expected to begin until at least a month after that.
In the meantime, the Chief Justice instructed every local chief judge in Georgia to work on plans to safely resume trials, stating: “As explained in the last extension order, this broad prohibition cannot continue, even if the pandemic continues, because our judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by indictment and trial.” “I applaud courts around the state for expanding their use of remote proceedings where possible through such technology as videoconferencing.” “Those proceedings that can be done remotely should be done remotely. But those that cannot – based on law or practicality – must nevertheless resume, but under strict adherence to public safety guidelines.” The chief justice has also said he believes a public service campaign will be needed to encourage people to show up for jury duty during the pandemic. (The September 10, 2020 Order can be viewed here.)
On September 21, 2020, Chief Justice Melton’s Judiciary Pandemic Task Force released new guidelines for reinstituting in-person jury trials that conform to state health and safety protocols intended to limit the spread of COVID-19. Citing a pent-up demand for resolutions that need a jury, the Chief Justice said he is committed to reinstituting in-person juries in a new order he planned to issue in October.
On October 10, 2020, the Chief Justice extended the Statewide Judicial Emergency Order through November 9, 2020. But, as promised, the October order “authorizes the Chief Judge of each trial court, in his or her discretion, to resume the jury trial process if local conditions allow and the Chief Judge, in collaboration with the local committee, has developed and issued a final jury trial plan.” The “Guidance for Resuming Jury Trials,” which is included in the Appendix of the order, contains detailed guidelines addressing many topics, including use of masks, reconfiguring courtrooms and chairs, installing plexiglass barriers, using markers to ensure social distancing, regularly replacing air filters, and guaranteeing public access to court proceedings, including setting up areas where the public can watch remotely within the courthouse. However, due to substantial backlogs of unindicted and untried cases, as well as public health precautions, the order recognizes that proceedings will not occur as quickly they did before the pandemic. Consequently, statutory deadlines based on indictments and jury trials will remain suspended. (The October 10, 2020 Order can be viewed here.)
Judges already have been holding Zoom or Webex hearings for motions to dismiss, for summary judgment, and other motions, and some are conducting bench trials. But even with virtual hearings, mediations and bench trials, resolution rates are lower, and some cases simply can’t be resolved without a jury trial, or at least an imminent trial deadline. Until in-person trials resume, case backlogs are expected to continue growing. So the judiciary feels compelled to figure out how to do jury trials effectively and safely in the midst of the pandemic. Please stay tuned for updates, as the situation continues to develop.
Concerns About Virtual Trials
According to the National Center for State Courts, 16 states and the territory of Puerto Rico have ordered virtual hearings in response to the novel coronavirus. However, as of mid-May 2020, it did not appear that any had ordered remote or virtual jury trials. The reasons are many.
One issue is making sure all parties, witnesses and jurors have access to high-speed internet so that they can appear in the first place. According to the Federal Communications Commission, as of early 2018, at least 21.3 million Americans lacked access to high-speed internet. There is also the question of how parties, witnesses and jurors can safely access public spaces with broadband during the pandemic. Parties or witnesses with lower-quality internet are the ones who are more likely to have interruptions in their audio or video feeds, which could impact how they are viewed by a judge or a jury. That so-called “digital divide” could therefore have real-time consequences and perhaps unfairly affect outcomes in any remotely-tried case, but especially a jury trial.
The National Center for State Courts, in collaboration with other organizations, has issued guidelines on how courts should handle virtual hearings. But opponents of remote jury trials say the technology required raises “real questions about the integrity of the process,” and whether jurors could be “susceptible to outside influence when the jury isn’t even in the same location as the judge.” A jury’s ability to deliberate could also be impacted, and courts would need to ensure that jurors were not doing independent research on cellphones or computers. “I don’t know that you could have the necessary precautions in place when all 12 are at their home, talking to each other on a screen,” one opponent has argued.
Then there are the procedures that many parties take for granted, such as the ability to confer quietly with their lawyers during their trials. “If you set up a situation where the client’s access to his or her attorney is through video, then a lot of the assurance that comes from being in close proximity with a lawyer—and the ability to think and act on the spot—is decreased,” one expert noted. One solution for allowing parties to communicate privately and simultaneously with their lawyers could include additional phone lines or private chat or note-taking functions. But clearly, a host of security, logistical and technical issues accompany a jury trial by videoconference.
Video can be distancing and distorting. And as courts grapple with virtual hearings, they need to consider how framing, lighting, camera angle, backdrop and location might make jurors question the credibility of a witness or create bias. Juries could view parties or witnesses differently depending on whether they are close or far away from a camera, or if they are framed from a low angle or have shadows on their faces. And wealthy parties represented by large law firms and their witnesses might have the financial means to appear better in video court proceedings than their less well-heeled adversaries.
In court, a jury views a witness or party in the context of the entire courtroom. “When you go into a court, there is that feeling of a very serious space—going through security, the marble floors, the echoing as you’re walking. That is an experience that reinforces to people that this is a serious place where serious things happen,” one trial consultant notes. “In the virtual space,” it’s much more difficult to “reinforce that someone’s liberty [or financial well-being] is at stake.” For some, there is nothing like the experience of being in court. A jury in a courtroom can build a whole picture and narrative in their minds by watching how attorneys and their clients interact. However, options for duplicating that in-person courtroom experience via videoconference, so that jurors perceive the same things on the screen, are still limited, say experts.
It is different when an attorney stands up, hands a photograph or piece of physical evidence to a jury, and has them physically touch and examine it, as opposed to only seeing something on a screen. So concerns that virtual trials could deprive parties (especially defendants in criminal cases) of constitutional rights to confront witnesses, an impartial jury, due process of law, or effective counsel, remain – especially if all the parties do not consent. And although almost everyone is worried about being exposed to COVID-19, many feel the almost insurmountable obstacles and disadvantages of trials by video make them inadequate substitutes for trials in court.
Changes in Federal Trial Courts Due to Pandemic
In federal trial courts in the Northern District of Georgia, the COVID-19 pandemic has also caused a dramatic change at the federal courthouses in Atlanta, Rome, Gainesville and Newnan. Long-established policies created by the Judicial Conference of the United States and adopted by the U.S. District Court for the Northern District of Georgia barred visual or audio recording devices and live broadcasts from the federal courthouses without a court order. Those have now been lifted due to the pandemic. Consequently, federal judges in Atlanta, Rome, Gainesville and Newnan may now use Zoom and other technology to conduct public hearings in real time without bringing everyone into the courtroom.
Videoconferencing in the Northern District is not unprecedented, but it has largely been inaccessible to all but a few participants. The 2020 Coronavirus Aid Relief and Economic Security Act has changed that. The pandemic emergency legislation loosened the traditional ban on remote public access to federal court proceedings and offered judges opportunities to conduct court business at times when health and safety concerns made court hearings potentially inaccessible.
Any recording — including audio, video, or still screen shots — of Zoom proceedings is still prohibited, and anyone doing so is subject to sanctions. “If you start letting people record and re-transmit bits and pieces of court proceedings, that will be a disaster,” the Chief Judge of the Northern District of Georgia, Thomas Thrash, has said. “There is to be only one record of a proceeding in federal court,” he says. But subject to that limitation, Judge Thrash has left it up to each individual federal trial judge to decide to what extent they want to use Zoom. And all courtroom deputies have been trained to use Zoom and can now serve as hosts for each judge.
Judges have noted that holding hearings via Zoom is preferable to merely doing so by phone because Zoom allows the judge to see the parties (when necessary) and their lawyers. Zoom also has a function that allows lawyers and their clients to conference privately during a Zoom session.
How long all of these changes designed to minimize personal appearances in courts will last is uncertain at this point. In an April 16, 2020 court order inaugurating the videoconferencing practice in the Northern District, Judge Thrash said that wide use of video conferencing with attendant public access “is intended to be temporary” and will expire once the Judicial Conference decides that current emergency operating conditions are no longer warranted. But on July 15, 2020, two federal courthouses in Georgia had to be closed indefinitely again after a court security officer tested positive for COVID-19.
Once the pandemic has sufficiently abated, many believe there are going to be demands on courtroom space like we have never had before. So everyone involved in the court system is thinking about what needs to be done to avoid what will be an inevitable backlog of cases when we come out of the public health and judicial emergencies. Teleconferencing and videoconferencing seem likely to remain part of the solution, despite some of the technical difficulties and security concerns they present.
In an order issued on September 28, 2020, Judge Thrash said that federal jury trials in the Northern District of Georgia (which includes courthouses in Atlanta, Newnan, Gainesville and Rome) will remain suspended until at least January 2021, because of the coronavirus pandemic. “The number of COVID-19 deaths in Georgia and the Northern District continues to rise, and no vaccine or cure is yet available to the public,” Judge Thrash wrote.
The order cited information from the Georgia Department of Public Health showing new COVID-19 cases in Georgia exceeding 1,000 a day, a higher daily tally than existed when jury trials were initially suspended in March. Additionally, almost 30 percent of Georgia’s coronavirus cases are in four counties within the Northern District (Fulton, DeKalb, Gwinnett and Cobb).
Consequently, lawyers have largely been prevented from having in-person meetings with clients. And interviews of some witnesses have been limited due to quarantine regulations in states that apply to persons traveling to and from Georgia. “These circumstances and others have severely impeded if not prevented counsels’ ability to prepare for trial,” Judge Thrash wrote.
Judge Thrash said the continued spread of the virus in Georgia and the U.S. means that the resumption of jury trials “cannot await the complete demise” of the pandemic. But he said jury trials will not resume until the court believes the health and safety of those appearing for trial can be adequately protected.
Discovery & Remote Depositions During the Pandemic
(This section is adapted in part from a May 15, 2020 article by David Abernathy, Kaitlyn Stone and John Tanner of Faegre Drinker Biddle & Reath.)
The COVID-19 pandemic has closed courthouses throughout the U.S. for all but essential proceedings. Most civil trials and hearings are on hold. Some courts are encouraging, and in some cases ordering, the continuation of discovery — including depositions using video or audio conferencing. Others have extended discovery schedules to await easing of pandemic restrictions. This section examines the different approaches courts are taking and the arguments litigants might make — or respond to — about whether to proceed with remote depositions.
Until now, remote depositions have been mostly optional and relatively rare. Court rules and case law provide little guidance. Federal Rule of Civil Procedure 30(b)(4) offers an option without specifics, stating that “parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.” State rules typically allow parties the option to take depositions remotely but do not require them to do so. But some courts are now entering orders that encourage or even require remote depositions during the pandemic, though many exempt healthcare providers dealing with the crisis.
For example, the New Jersey Supreme Court entered a Second Omnibus Order that provides to “the extent practicable through May 31, 2020, depositions should continue to be conducted remotely using necessary and available video technology … [but] all depositions and appearances for any doctors, nurses, or healthcare professionals involved in responding to the COVID-19 public health emergency … will remain suspended … through May 31, 2020, except for appearances and depositions (i) that are requested by the doctor, nurse, or healthcare professional; or (ii) that are for matters related to COVID-19.”
The Philadelphia, Pennsylvania state court suspended all trials through May 2020 but directed that to “the extent practicable, depositions should be conducted remotely through telephone, videoconference, or similar technology,” while “appearances for doctors, nurses, or other healthcare professionals who are substantially involved in responding to the COVID-19 public health emergency are suspended” indefinitely.
The Illinois Supreme Court amended Supreme Court Rule 206 to facilitate remote depositions. The deponent is no longer required to be physically present in the same place as the officer administering the oath and recording the deposition, and time “spent at a remote electronic means depositions in addressing necessary technology issues shall not count against the time limit for the deposition.”
And in South Carolina, a judge postponed a set of asbestos trials due to the COVID-19 outbreak, but refused to halt the litigation entirely, telling lawyers “the judicial system must adapt.” “Discovery in these cases may be less convenient than the norm. Inconvenience, in comparison to delaying justice in not just these cases, but the ones that come after, is not a valid basis to stop discovery. Ceasing workup of these cases is not necessary to protect the health of witnesses or lawyers. Therefore, discovery shall continue as scheduled.” “Depositions shall proceed by fully remote tele/video platforms. The parties shall meet and confer to decide whether such depositions shall take place telephonically and/or via videoconference technology,” the judge ordered.
By contrast, in New York, the Chief Administrative Judge issued an Order on March 19, 2020, urging parties to agree on 90-day extensions of discovery deadlines and assuring that parties would not be “penalized if discovery compliance is delayed for reasons relating to the coronavirus public health emergency.”
Federal courts have addressed the issue mostly on a judge-by-judge, or case-by-case, basis. For example, Chief District Judge Rodney Gilstrap in the Eastern District of Texas issued a Standing Order for his civil cases stating that “depositions of witnesses may need to be conducted remotely with all participants separated,” even as it acknowledged that the process “especially for first-time witnesses unfamiliar with the process, may be an uncomfortable experience.” Some federal courts have ruled that depositions must proceed remotely, see, e.g., In re Kurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-MD-2542 (S.D.N.Y. Mar. 16, 2020), while others have concluded that some, including entity depositions under Rule 30(b)(6) or document-intensive depositions, should not proceed in that fashion. See, e.g., Roo v. Costco Wholesale Corp., No. 19-cv-1120 (S.D. Cal. Apr. 2, 2020); C.W. v. NCL (Bahamas) Ltd., No. 19-cv-24441 (S.D. Fla. Mar. 21, 2020).
In this rapidly changing environment, litigants must decide whether remote depositions are the best way to proceed, and if not, whether and how they might be limited. That requires assessment of many factors, including how savvy the witness is, how comfortable the lawyer and witness are with the technology, how many parties and lawyers will participate, and how many documents must be reviewed and discussed in the deposition.
Some parties may argue that face-to-face interaction is essential and that all depositions should be postponed rather than conducted remotely. That may carry the day if the judge sees the deposition “dynamic” the same way, if there is a substantial amount of time left in the discovery schedule, or if the rescheduling of earlier listed cases will delay trial anyway, so that there is no need to rush to complete discovery.
But some judges have decided that depositions must proceed even if remote methods are less than ideal, and in these cases lawyers who want to avoid or limit remote depositions have to tailor their arguments to the specific circumstances.
Among the issues that lawyers need to address, whether they want to take or stop a remote deposition, are these:
- Whether the witnesses have the necessary technology and know how to use it. Some courts have concluded this is not an issue because lawyers and court reporting firms can provide the technology and instruction on how to use it. See, e.g., Order, Grano v. Sodexo Management, No. 18-cv-1818-GPC)(BLM) (S.D. Cal. Apr. 24, 2020). But witnesses, especially if they are part of the most vulnerable populations, may object to forced exposure to vendors delivering or installing equipment.
- The lawyers or clients, now working remotely, may lack access to necessary files or notes to prepare, though many materials are now stored electronically and most firms have some ability to find and ship documents.
- Some remote depositions may be difficult to conduct if a large number of parties and lawyers will participate, or if the depositions require use of many lengthy or complex documents. Technologies available to share exhibits though remote sharing are often awkward. Some lawyers avoid these limitations by circulating paper exhibits in advance, sometimes in sealed envelopes with agreements not to open them until they are identified during deposition. Some courts have chosen to preclude certain depositions based on these considerations; others may choose to proceed while waiving requirements for contemporaneous objections (to avoid having multiple lawyers interjecting), or to lengthen the time for deposition (to account for the added time dealing with technical issues).
- Some witnesses may be dealing with unique work or professional demands due to the pandemic that make an appearance difficult in the near term. This is most likely to be an issue with healthcare workers (who may already be exempt by court order) but it also could apply to scientists or others working on COVID-19 issues.
- Some witnesses may be unable to proceed because of personal circumstances, such as obligations to care for young children who are at home while schools are closed, or to care for family members who are infected or being treated.
- Depending on the case, some parties may conclude that a requirement to take remote depositions is unfair because the other side may be able to take other depositions “live” at a later time when pandemic restrictions are eased. Some courts may require that all depositions proceed remotely, even as conditions change, so that everyone operates under the same limitations. (If required to take a remote deposition a lawyer may argue that all other lawyers also be remote, because it is unfair for the lawyer taking the deposition to be connected remotely while the defending lawyer sits in the room with the witness. If it is unsafe for one lawyer to be there, it should be unsafe for all.)
Litigants confronted with these issues need to consider the rules and orders in the relevant courts and the attitudes of their assigned judges. Litigants who conclude that remote depositions are not the best option for them may need to negotiate limitations and try to save some key depositions to be taken in person at a later time, rather than objecting to all remote depositions, if the court makes clear it wants depositions to proceed remotely.
COVID-19’s Effect on Alternative Dispute Resolution
COVID-19 is changing not only the litigation landscape in courts; it is also changing how alternative dispute resolution (“ADR”) proceedings are conducted. Stay-at-home orders and the need for social distancing place an added burden on parties seeking to resolve or negotiate a settlement through an ADR (arbitration or mediation) process. With the situation rapidly changing, parties are turning to conducting arbitrations and mediations telephonically and via virtual teleconference technology.
This poses unique challenges when attorneys can no longer examine witnesses or negotiate with their counterparts face to face. Likewise, arbitrators, mediators and settlement judges must alter their techniques in order to facilitate an effective and successful arbitration or mediation.
But the fact that everyone is being forced to use these technologies seems to be making everyone more comfortable with using them. As a result, many experts predict that the imprint of the pandemic and increased use of remote video conferencing will outlast the crisis.
As with law firms, many ADR organizations had to transition to fully remote operations to comply with shelter-in-place orders virtually overnight. But most seem to have done so quite well. In mid-March 2020, most ADR firms began transitioning to online ADR. Since then, they have proceeded with countless cases through video conferencing.
A more permanent acceptance of remote resolution now seems inevitable. The ADR industry has been promoting online dispute resolution tools for some time. But there’s been resistance. However, now that people have been pushed into it sooner than expected, most observers predict that it’s going to be much more a part of how we handle cases going forward.
Remote tools could also substantially change ADR and widen the reach of neutrals with particular specialties, such as resolving cases involving the healthcare industry. It could open up opportunities to expand the ability of neutrals with particular expertise to mediate and arbitrate out of their geographic areas where it otherwise would not make sense economically to travel. In the healthcare industry in particular, depending on the case and locations of the parties, this can helpful to everyone involved, assuming people are comfortable with the technologies required.
Arbitration and mediation companies have reacted to the current crisis and the new normal for handling dispute resolution by quickly converting cases originally slated to be in person to their virtual, hopefully cost-effective/efficient systems that (when they work as intended) allow cases to be mediated and arbitrated through the use of video technology. Virtual ADR can allow cases to be seamlessly resolved without the need for travel by any party, attorney or insurance carrier representative. All participants can hear and see each other. And the mediator is able to separate the parties and engage in meaningful settlement discussions, just as if all were present at the same location.
Most participants report that the processes put into place have worked well and the transition to Zoom and similar companies’ video conferences has been smooth. IT experts generally provide the support necessary with someone present at the start of proceedings to ensure a trouble-free experience. “We have not heard of any problems yet whatsoever,” a senior vice president of the American Arbitration Association (“AAA”) has said. “Our concern going in was not our readiness, but could the platform support all the migration of people from all types of businesses. So far we haven’t had any issues.”
But despite the availability and convenience of video conferences, there still are issues with virtual conferences — such as privacy, security, what is going on in the room that you can’t see through virtual connection, and perhaps more — that need to be ironed out, skeptics say. Zoom, in particular, has now achieved high recognition and utilization as a videoconferencing service. But not all the attention Zoom has received has been favorable. Just as lawyers and mediators were starting to get comfortable with this technology as a suitable medium to conduct business, The New York Times published an article questioning its security, causing many lawyers to second guess the wisdom of using Zoom due to fears about security and confidentiality.
However, spurred by the pandemic, these fears can and largely are being allayed with proactive management by the host of the settings, password protected meetings, waiting rooms, breakout rooms and common sense, which lawyers, mediators and arbitrators are now adopting in the same way they adopted removal of metadata from documents and embraced encryption. (On May 7, 2020, New York Attorney General Letitia James reached an agreement with videoconferencing company Zoom Video Communications, Inc. to provide enhanced privacy and security protections for Zoom’s 300 million users. As previously reported, AG James had sent a letter to Zoom seeking information regarding the security measures Zoom had put in place to handle surging traffic and expressing concerns about the increased activity of hackers on Zoom’s platform. Under the terms of the letter agreement, among other things, Zoom will conduct risk assessments and software code reviews to identify vulnerabilities, enhance encryption protocols, enable privacy controls for free accounts, cease sharing user data with Facebook by disabling users’ ability to log into Zoom from Facebook, and disable its LinkedIn Navigator feature, which shares profiles of users even for users that want to stay anonymous. Also on May 7, 2020, Zoom Video Communications announced it is buying security firm Keybase in an effort to shore up security for its video meetings. Keybase will help Zoom implement end-to-end encryption, a type of security which means Zoom has no access to the contents of encrypted data.) So if COVID-19 proves to be long-lasting, seasonal or cyclical, people might feel more comfortable using these technologies in the future, experts say.
Others, however, believe that ADR will likely revert back to primarily face-to-face proceedings when the coronavirus threat subsides. “There’s just nothing that substitutes for face-to-face interaction,” says one ADR company executive. And many lawyers and neutrals agree. But ultimately, it will be clients who have the greatest say in what happens post-pandemic.
Whether virtual or in person, ADR has significant advantages. Greater utilization of ADR can result in plaintiffs’ lawyers and their clients resolving cases and obtaining money sooner. Defendants and insurance carriers are able to close out files and reduce their reserves, which generally must go up as they age.
As many have noted, unlike fine wine, cases rarely get better with time. Memories fade, witnesses disappear, parties become entrenched in their positions, and costs mount as cases slog their way through an often overburdened court system. These arguments were compelling before the COVID-19 pandemic. They have only been amplified since the pandemic.
Even where a case fails to settle at mediation, the stage can be set for further discussions and resolution not long afterwards. Many cases settle within a week or two following mediation. And follow-up calls after mediation are standard procedure in an ongoing effort to get the parties to come to an agreement. This can be especially true during these difficult times of stay-at-home and isolation when no one knows when things will get back to normal, or what normal actually will be.
At this stage, it appears that remote handling of cases is unlikely to be only temporary or short-term. In these uncertain times, ADR is not only an alternative means of resolving disputes, it can be the preferred method for achieving relatively quick, cost effective resolution of disputes. Both sides almost always desire an end to a legal disagreement or lawsuit. For plaintiffs, it means money. For defendants and insurance carriers, it means closure. For both sides, it means reduced expenses, thereby maximizing any recovery and profits. We all must be more flexible as we grapple with the pandemic and work through our new post-pandemic normal. In many cases, virtual ADR proceedings can be a solution.
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