The Lawletter Vol 45 No 3
Based on the exceptional circumstances presented by the COVID-19 pandemic, many state and federal courts have entered general orders altering deadlines for a wide variety of matters, including deadlines for filing appeals, the most notable example being the U.S. Supreme Court's extending the period to seek review of a lower court decision by writ of certiorari from 90 to 150 days. Counsel should be aware, however, that in the absence of an order of general applicability, deadlines will not be extended without a specific order from the court in a particular case. To the contrary, judges are loath to allow "all litigation to grind to a halt in many cases," as "allowing that to happen will only exacerbate, in many cases, the detrimental effects of this crisis." Horning v. Resolve Marine Group, No. 19-60899-CIV, 2020 WL 1540326, at *1 (S.D. Fla. Mar. 30, 2020) (Scola, J.).
In Horning, the parties had previously filed an agreed-to motion seeking a continuance because the plaintiff had not reached maximum medical improvement for his work injury and, therefore, the parties argued, could not have a medical expert examine him until after his upcoming surgery and subsequent recovery. But the court denied the parties' joint motion because personal injury cases often proceed to trial before the plaintiffs reach maximum medical improvement and medical experts can testify to likely future improvements. After the court issued that ruling, the parties jointly moved the court to reconsider in light of the "significant change of circumstances due to newly imposed restrictions as a direct result of the COVID‑19 pandemic which directly impacts the parties' ability to proceed with discovery in the New Orleans, Louisiana area." Id.
The court was again unmoved, however. While the court was "empathetic with the difficulties that parties and attorneys are now facing with respect to the orderly litigation of their cases," the court noted that "there are still many aspects of litigation that can continue, remotely and while maintaining social distancing, despite the circumstances." Id. The court eschewed a "one-size-fits-all, blanket stay or extension of deadlines" in all of its pending cases. Id. Instead, depending on the stage of the litigation in a particular case, "attorneys can still file pleadings and brief legal issues, parties can still exchange quite a bit of discovery, and parties can meet and confer, remotely, to discuss the status of the case, among other activities." Id.
In that case, the deadline to complete all fact discovery had already passed on February 21, 2020, before the first case of COVID‑19 was confirmed in Florida. The deadline to complete expert discovery was not until April 17, 2020, but the parties had not specified in their motion exactly what aspect of expert discovery might be rendered impossible due to COVID‑19. Accordingly, the court denied the parties' joint motion for reconsideration. The court again noted that it was not unmindful that some litigation tasks would be rendered virtually impossible under the current circumstances and, therefore, the court would "accommodate all reasonable requests that relate to particular deadlines in specific cases." Id. The court cautioned, however, that the parties would be required to file "a motion for an extension of time of particular deadlines specifically tailored to this case, and that allows for aspects of litigation that can continue to continue." Id.
In sum, extensions of discovery and other deadlines will be available in light of the COVID-19 pandemic, but only as the circumstances of a particular case allow. Parties need to be prepared to go forward with existing deadlines or, if warranted, to move the court for specific relief based on the specific circumstances of that case.