Client Alert • January 22, 2021
COVID-19 EFFECT ON LITIGATION
IN STATE AND FEDERAL COURTS
Since the onset of the COVID-19 pandemic, courts throughout the country have faced unprecedented challenges to their goal of providing an avenue for justice to litigants. As the pandemic continues to unfold, state and federal courts have struggled with the logistical hurdles that come with court closures and changing procedural rules as states take measures to prevent the spread of COVID-19. Some of the most common efforts that courts are taking to combat the spread of coronavirus include the restriction or suspension of jury trials, generally suspending in-person proceedings, restricting entrance into courthouses, granting extensions for court deadlines, and encouraging or requiring teleconferences and videoconferences in lieu of in-person hearings. Despite all the various setbacks that have come because of the pandemic, litigation remains ongoing in the various state and federal courts across the country.

Landscape of Litigation in Certain State and Federal Court Systems.
 
In response to the COVID-19 pandemic, state and federal courts have instituted various orders and changed procedural rules to accommodate litigants and reduce the spread of coronavirus. However, these court policies vary by state and are subject to changes and/or expiration. Please see below for an overview of the state and federal court systems in Florida, Massachusetts, New York, North Carolina, and Rhode Island.
 
Florida.

i. Current Status of State Courts

On April 21, 2020, Chief Justice Charles T. Canady of the Florida Supreme Court issued a new administrative order creating a 17-member workgroup to recommend ways for a staged return to full court operations as the course of the coronavirus pandemic changes in the months ahead.[1] The workgroup’s term was extended through July 2, 2021. The workgroup was established to determine ways for courts to safely operate as fully as possible during each stage of the pandemic. The order identifies four anticipated phases of the pandemic: (1) in-person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare; (2) limited in-person contact is authorized for certain purposes and/or requires protective measures; (3) in-person contact is more broadly authorized and protective measures are relaxed; and (4) COVID-19 no longer presents a significant risk to public health and safety.

As of December 2, 2020, virtually every county in Florida is in Phase 2 of the court’s reopening guidelines from the workgroup.[2] Further, many of Florida’s twenty Circuit Courts are modifying their court operations based on their local public health data as a continued means of stopping the spread of COVID-19. Some circuits have temporarily suspended in-person jury trials or non-jury trials and proceedings while others are temporarily limiting the number of trials permitted to proceed.[3] Additionally, courts are taking the necessary steps to support the conducting of proceedings with the use of technology (such as by teleconferencing, videoconferencing, or other means). Courts may need to conduct hybrid hearings (concurrently in-person and remotely) in certain instances. The remote hearings and conferences shall continue until Phase 4.

ii. Current Status of Federal District Courts.

Florida’s federal district court system is divided into three judicial districts that are referred to as the Southern, Northern, and Middle Districts of Florida. Each district court is responsible for issuing administrative orders regarding its own policies and procedures related to COVID-19. For example, on October 20, 2020, the District Court for the Southern District of Florida announced an Order limiting in-court appearances and continuing all jury matters.[4] Under the Order, all persons entering any federal courthouse facility within the Southern District of Florida must wear a face mask at all times, maintain a social distance of six feet apart unless they are members of the same household, and may be subject to screening related to COVID-19. The Order further announced that all United States Courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce, and Key West will remain open for business, with reduced staffing, to a level to maintain essential operations. All jury trials in the Southern District of Florida scheduled to begin on or after March 30, 2020, are continued until April 5, 2021. This differs from the Middle District of Florida where jury trials remain on-going, subject to the discretion of the individual justice, and each division has one courtroom specifically outfitted with plexiglass and other COVID-19-related protective measures. Additionally, the Southern District’s Order stated that individual judges may continue to hold hearings, conferences, and bench trials in the exercise of their discretion, consistent with the Order. Judges are also strongly encouraged to conduct court proceedings by telephone or video conferencing where practicable.
 
Massachusetts.

i. Current Status of State Courts.
 
On November 6, 2020, amid rising coronavirus numbers in the Commonwealth, the Supreme Judicial Court of Massachusetts (“SJC”) delayed the restart of jury trials until the week of November 30, 2020 and scaled back the SJC’s initial plan for a two-month Phase I by reducing the number of jury trials and locations. Since that time, there has been a single jury trial conducted each week before a six-person jury. The Court is maintaining a webpage with the jury trial schedule (which currently is set through January 2021).

State courthouses in Massachusetts remain open with restrictions and parties are encouraged to conduct business virtually whenever possible. Trial courts are directed to conduct in-person proceedings in emergency and non-emergency matters that either can be handled more effectively or efficiently in person or cannot be handled virtually because a virtual proceeding is not practicable or would be inconsistent with the protection of constitutional rights. On January 11, 2021, in accordance with the orders of the Supreme Judicial Court, the trial courts have implemented a 90-day plan for operations through April 5, 2021, including the Phase I resumption of jury trials in accordance with the orders of the SJC.

ii. Current Status of Federal District Courts.
 
The Federal District Court for the District of Massachusetts’ General Order 20-35 established criteria for entry to the Federal District Courthouses included mandatory wearing of face masks and the requirement for visitors to complete a “health self-assessment” in advance of entry in order to limit the spread of COVID-19.[5] In order to keep the work on the court moving, judges continue holding hearings and conferences by telephone and video and issued a public notice regarding public access to these teleconferences and videoconference hearings.[6]

The Court’s General Order 20-21 paved the way for increased in-person proceedings in the District Court.[7] Under the Order, the Court may conduct “a limited number of in-person, non-jury proceedings,” with specific protections in place, including social distancing in courtrooms and a mask requirement for all participants, except for witnesses under oath who will testify behind a plexiglass screen. While most hearings and other matters will continue to be heard virtually, certain non-jury proceedings may be scheduled in-person in cases where “(1) further delay may harm the interests of justice and (2) the law does not permit video proceedings or the requisite consents cannot be obtained.”
 
New York.

i. Current Status of State Courts
 
On November 13, 2020, New York state courts indefinitely postponed all new jury trials in an increased effort to slow the spread of COVID-19.[8] However, the memorandum released by Court officials maintained that all pending bench trials will continue to conclusion. Further, the announcement stated all that all future bench trials and hearings will be conducted virtually unless the respective Deputy Chief Administrative Judge permits otherwise.

ii. Current Status of Federal District Courts
 
New York’s federal district court system is divided into four judicial districts that are referred to as the Southern, Northern, Eastern, and Western Districts of New York. Each district court is responsible for issuing administrative orders regarding its own policies and procedures related to COVID-19. For example, on November 30, 2020, the Federal District Court for the Southern District of New York suspended in-person operations through January 15, 2021. On January 6, 2021, the Court announced that the previous suspension will continue through February 12, 2021 and all jury trials scheduled for the period beginning January 19, 2021 and ending February 12, 2021 are adjourned and that no petit jurors will be summoned during this extended suspension of operations.[9] The three other New York district courts have similar policies in effect regarding jury trials. Further, the Court’s Order announced that bench trials and hearings with witnesses will be conducted remotely if at all possible. The Court made a note that all routine civil matters will continue and must be conducted remotely. Additionally, the Court’s announcement detailed that all new cases, motions, and other applications should be filed through the electronic filing system and will be routinely reviewed.
 
North Carolina.

i. Current Status of State Courts
 
On January 14, 2021, Chief Justice Paul Newby of the Supreme Court of North Carolina issued a new order containing a number of emergency directives in response to the public health threat posed by the COVID-19 pandemic.[10] The Order restored to local judicial officials substantial decision-making authority over when and how to conduct jury trials and other in-person proceedings. This Order marked an expiration of a previous order that suspended jury trials and other in-person proceedings. Further, judicial officials throughout the state continue to have the authorization to conduct proceedings that include remote audio and video transmissions. Meanwhile, those entering courthouses must wear a face covering and maintain a social distance of six feet apart from other persons.
 
ii. Current Status of Federal District Courts
 
North Carolina’s federal district court system is divided into three judicial districts that are referred to as the Eastern, Western, and Middle Districts of North Carolina. Each district court is responsible for issuing administrative orders regarding its own policies and procedures related to COVID-19. For example, the Federal District for the Western District of North Carolina released an Order declaring that civil motion hearings may be conducted in the courthouse or via video teleconference as directed by the presiding judge in the matter.[11] Jury trials in civil matters are resumed, subject to courtroom availability, in the discretion of the presiding judge. Further, in accordance with social distancing practices in jury trials, limited public seating in courtrooms for jury trials may necessitate public attendance only via remote video viewing, as necessary.
 
Rhode Island.

i. Current Status of State Courts.
 
Per an Administrative Order dated December 21, 2020, matters that can be handled remotely via remote WebEx technology will continue to minimize the number of persons gathered in courtrooms. All remote matters are scheduled in accordance with the Criminal and Civil Matters Protocol for Requesting a Remote Hearing/Conference (During Covid-19 Emergency Measures). Matters that cannot be handled remotely will be conducted in-person. Calendars operating in Providence County include the Trial/Pre-Trial Calendar, Civil Motion Calendar, and Formal & Special Cause Calendar. Additionally, the Civil Calendars will be operating in Kent, Newport, and Washington County.[12]

The Court has undertaken measures to allow jury trials to resume on a limited basis in Providence County. However, no jury trial will be scheduled without the express, written authorization of the Presiding Justice where a constitutional, statutory or otherwise highly critical need has been demonstrated. Further, in-court bench trials shall continue with advanced notice to the Presiding Justice with the assurance that all necessary safety measures are in place.

ii. Current Status of Federal District Courts.

Per an Administrative Order dated December 9, 2020, which will remain in effect until March 9, 2021, the federal courthouses in Rhode Island will remain closed to the public until further notice.[13] The United States District Court for the District of Rhode Island has continued all criminal petit jury selection and trials until January 26, 2021 and has ordered that all trials and phases of trials from empanelment to deliberation in civil actions be conducted remotely via video technology. 















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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.
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