Response to COVID-19: Litigation Impacts and Resources in Georgia
Apr 1 2020
Introduction & Executive Summary
There can be no question that litigation will be impacted by the increase in remote work environments and mandated social distancing resulting from COVID-19; however, in many cases, it may be necessary and even beneficial to continue moving cases forward to the extent possible. This document is intended to be a resource to address litigation-specific concerns resulting from COVID-19 and analyzes how our courts have addressed the ongoing outbreak, how parties should (and should not) adapt to these changes, and what resources and technology may be available to attorneys and clients to help bridge the gap in the interim.
Specifically, the document outlines standing orders issued by courts across the state and other ways in which courts are managing case deadlines. Then, the document addresses the following topics and ways in which parties may leverage existing technology and resources to take meaningful action in their cases from a remote location, including: (1) taking depositions by telephone or videoconference; (2) conducting written depositions of fact witnesses; (3) engaging in remote document collection and review; (4) scheduling remote hearings, to the extent practicable; and (5) engaging in remote mediation and arbitration.
I. Courts Across the State Are Taking Different Approaches to Case Management.
Adding to the uncertainty facing litigants and counsel with cases currently pending, courts across the state and among every level of the judiciary have taken different approaches to case management and scheduling in response to COVID-19. Fortunately for litigants in Georgia, the Superior and State Courts are uniformly following the Supreme Court of Georgia’s Order Declaring Statewide Judicial Emergency, which instituted a freeze on all deadlines and other time schedules and filing requirements until 11:59 p.m. on April 13, 2020, at the earliest [The Court expressly reserved the right to extend the Order, as necessary, beyond the initial expiration date.]. Once the Supreme Court’s order has expired, parties will have the same amount of time to file their documents as they would have had remaining at the time the order went into effect on March 14, 2020. Note, however, that some filings with date-specific deadlines—such as appellate briefs—are encouraged to be filed on time.
Georgia’s federal courts have taken a slightly different approach. For example, the District Court for the Northern District of Georgia and the District Court for the Middle District of Georgia have continued all jury trials for 30 and 60 days, respectively. While such actions do not directly impact trials expected to commence beyond the time periods set forth in the court orders, there is sure to be a domino effect that will continue to push trial dates well into the future as the courts attempt to clear the backlog that will develop during the continuances.
Appellate courts also have begun to grapple with the effect of the COVID-19 outbreak on their ability to hold in-person oral arguments. For example, the Eleventh Circuit recently took the unprecedented step of moving all scheduled oral arguments to audio or teleconference. The Supreme Court of Georgia made a similar move, announcing late last week that it would host oral argument on April 20-24 remotely via the videoconferencing software Zoom. While these adaptations help to ensure that appeals will continue to move apace, they also open uncharted waters for those appearing before the courts, who most certainly will have to modify their presentation style, strategy, and demeanor to acclimate to this new reality. Counsel also should carefully test their technology (including by dusting off their dedicated landline telephone) to ensure that there are no technical glitches on the day of the argument. Notably, both courts announced that their remote oral arguments would be livestreamed to the public through their respective websites.
It is anticipated that courts will continue to update and revise their standing orders as our present circumstances continue to evolve. Those with cases currently pending are encouraged to check frequently if the court(s) have issued any updated guidance. This information most likely will be posted on the homepage of the courts’ respective websites and should be referenced regularly.
II. Notification of Service of Process and Other Documents.
It is critical to develop a protocol for service of process and other documents (like subpoenas) during the pandemic.
If you rely on a registered agent service to act as your registered agent, check to see if that service is still accepting process. For example, many clients rely on CT Corporation to accept process. As of March 28, CT has closed several physical office locations but still is accepting process by mail and physical drop box. Process sent to a closed office will be re-routed to alternative sites for processing. Alternatively, ABC Legal (formerly MLQ Attorney Services) is accepting service digitally rather than requiring physical delivery of the originals. However, it also notes that in the rare instances when original documents must be served, fulfillment is operational but may be delayed.
If you are not using a service, contact your Registered Agent to determine the established working protocol. If the Registered Agent is no longer receiving mail at the registered office location, consider having mail forwarded and/or switching to electronic service.
Some courts and governmental agencies also have suspended or modified their service procedures. For example, the United States District Court for the Southern District of New York issued a standing order stating that all personal service by the United States Marshal’s Service was suspended until further notice, but making clear that service by mail and electronic service would proceed as usual. Similarly, the Georgia Secretary of State’s Office has temporarily closed its service window, but continues to accept service filings online, by email, or by U.S. mail. If you will be relying on the government for any service or related needs, be sure to check their respective websites frequently for any relevant updates. Finally, be aware that some states, including Delaware and New York, have issued executive orders to temporarily permit the remote notarization of documents, and several other states permit such remote notarization as a matter of course.
III. Managing Deadlines and Seeking Appropriate Extensions.
While certain litigation deadlines have been pushed back or postponed indefinitely, others remain in place and will necessitate careful and potentially creative planning in order to remain compliant. For example, the United States District Court for the Southern District of Georgia issued a notice which stated, among other things, that “[a]ll deadlines and hearings that are currently set will remain in place unless or until you hear otherwise from Chambers or Clerk’s Office staff.” In light of the Court’s guidance, parties must be mindful of Federal Rule of Civil Procedure 16(b) scheduling orders that are ubiquitous in federal court and should proceed, to the extent possible, with those deadlines in mind. This is particularly true for parties who are, or soon will be, engaged in the course of discovery.
Attorneys should remember that some deadlines cannot be tolled because they are creatures of statutory or jurisdictional authority, rather than traditional court rules, and, as such, cannot be disregarded—even if both parties and the court agree to such outcome. For example, under Federal Rule of Appellate Procedure 26(b), the deadline to file a notice of appeal “cannot be extended by the appellate court.” Martinez v. Trainor, 556 F.2d 818, 819 (7th Cir. 1977). Similarly, some rules on their face preclude equitable tolling. For instance, a party’s right to remove a case to federal court within the 30-day window provided by 28 U.S.C. § 1446(b) is jurisdictional, meaning “[a]n extension of time to plead by an order of the court beyond the date when pleadings would be due does not extend time for removal under a federal statute.” Bertrand v. Vingan, 899 F. Supp. 1198, 1199 (S.D.N.Y. 1995). Counsel should be mindful of which deadlines can (and cannot) be tolled by an order of the court.
Furthermore, in many cases, it may be possible to meet briefing deadlines and other interim deadlines, short of trial. In that case, we encourage parties to continue working on current scheduling deadlines to avoid having all cases come to a complete halt, only to be restarted again with multiple overlapping deadlines. Parties should also consult scheduling orders and standing orders issued in their cases to determine which, if any, extensions are required, and then be mindful about which extensions are necessary.
Finally, a word of caution. The pandemic, of course, should not be used to try to excuse conduct or justify delay where it does not legitimately do so. See In re Paul R. Koch, No. 19-CV-2830 (KMK), 2020 WL 1304084, at *4 (S.D.N.Y. Mar. 18, 2020) (“While the coronavirus outbreak is recent, appearing in the United States and coming to public attention within the last month, Appellant’s failures have been lengthy, repeated and ongoing for nearly a year.”).
IV. Completing Discovery and Taking Depositions.
Of course, the trial courts’ respective orders freezing in place many cases during the pendency of this pandemic are not meant to signal to attorneys that they must close their files, turn off their computers, and await further orders. There are many discovery tasks—such as document review and production—that may continue (relatively) unabated in the interim. Section E below discusses remote document review and production in more detail.
However, other tasks may prove more challenging under the present circumstances. One particular task which will require a creative and flexible approach from discovery counsel is the taking and defending of depositions. Parties should consider the feasibility of the alternatives to in-person depositions and carefully weigh the pros and cons of such options in light of their overall trial strategy.
As an initial matter, many tort cases—in particular, those involving medical malpractice and products liability—require deposing a wide variety of healthcare providers and other medical professionals. However, as one court recently observed, “[i]t is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck [and] [a]ll hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.” DeVine v. XPO Logistics Freight, No. 18-C-1264, 2020 WL 1275087, at *2–3 (N.D. Ill. Mar. 17, 2020). Therefore, attorneys are encouraged to consider the practical realities facing deponents when considering whether to move forward with seeking to depose parties and experts during the ongoing and quickly evolving COVID-19 crisis.
For those depositions that can safely and prudently move forward during this time of uncertainty, several guidelines and practical tips should help to streamline the process.
A. Relevant Rules from the Federal Rules of Civil Procedure and Georgia Civil Practice Act.
For many attorneys, this may present the first opportunity to take or defend a deposition remotely. The Federal Rules of Civil Procedure provide specific guidance for taking remote depositions, providing that:
The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.
Fed. R. Civ. P. 30(b)(4). As the Rule notes, remote depositions may be agreed upon and arranged by stipulation of the parties without requiring approval from the trial judge. However, if the parties cannot agree on this, either party may appeal to the court for an order requiring that the deposition be taken remotely. Notably, the Rule itself is silent as to what showing must be made for the court to issue such an order, but commentators suggest that “courts seem to require some showing of good cause … consider[ing] the reasons given for wanting to proceed by remote means and balanc[ing] the advantages and disadvantages of doing so.” Steven S. Gensler & Lumen N. Mulligan, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 30 (Feb. 2020). As a general matter, however, leave to take depositions by remote means has been granted liberally by the courts. See Federal Civil Rules Handbook, 855; James Wm. Moore et al., Moore’s Federal Practice § 30.24 (3d ed. 1999) (“[L]eave to take a telephonic deposition should be liberally granted.”).
The Georgia Civil Practice Act contains a parallel provision, stipulating that “a deposition may be taken by telephone or other remote electronic means only upon the stipulation of the parties or by order of the court. For purposes of the requirements of this chapter, a deposition taken by telephone or other remote electronic means is taken in the state and at the place where the deponent is to answer questions.” O.C.G.A. § 9-11-30(b)(4). As a practical matter, although parties are encouraged to work collaboratively to adapt to these changing times, Georgia courts have noted that “[a]bsent extraordinary circumstances … the failure of a party to agree to telephonic depositions cannot form the basis of an award of attorney fees and expenses under OCGA § 9–15–14.” Ingram v. Star Touch Commc’ns, Inc., 215 Ga. App. 329, 329 (1994).
B. Advantages and Disadvantages of Remote Depositions.
Although the vast majority of depositions take place in person, remote depositions have been available and employed (albeit sparingly) for several years. However, even with the flexibility and cost savings associated with this option, parties generally have shown a preference for time-tested in-person depositions over their more modern digital counterpart. We expect, however, that the COVID-19 travel restrictions will inspire more parties to consider the option of taking and defending depositions by remote means. As discussed below, there are both pros and cons to taking a remote deposition, and there are several logistical considerations that attorneys must address before taking this step.
1. Telephonic v. Video Depositions.
Logistically, several considerations must be weighed when determining whether and by what means to conduct a remote deposition. There are generally two primary options: videoconference or teleconference. The principal difference between the two, of course, is the ability to view the deponent and vice versa while asking your questions. Regardless of whether the deposition is being conducted via videoconference or teleconference, however, counsel should be aware that he or she will not have the same opportunity to observe the deponent’s demeanor, body language, and other non-verbal cues as he or she would if sitting across the table from the deponent. Before objecting to the idea of a remote deposition on these grounds, be cognizant of the fact that courts have held that a party’s “desire to observe the deponent’s demeanor during the deposition … without more, does not amount to good cause” to deny the request to take a remote deposition. Loughin v. Occidental Chem. Corp., 234 F.R.D. 75, 77 (E.D. Pa. 2005).
Additionally, if the deposing counsel is not physically present at the scene of the deposition, counsel will need to take steps to ensure that the deponent is answering the questions on his or her own volition and that there are no inappropriate influences present which may be out of sight of counsel. Therefore, to the extent possible, parties should prioritize video depositions over their telephonic counterpart and should strive to have—at a minimum—either an agent of the attorney or an officer of the court present at the scene of the deposition to ensure fair play. Furthermore, it is worth considering the extent to which access to a dedicated court reporting center or office space is available for the limited purpose of conducting the deposition.
2. Recording the Deposition.
Next, the parties must determine the method by which the deposition will be recorded. The Federal Rules of Civil Procedure provide some guidance on this, stating that a deposition may be recorded in one of three ways: audio, audiovisual, or stenographic means. Fed. R. Civ. P. 30(b)(3)(A). Furthermore, if the deposition is not recorded by stenograph, then the Rule provides that “[a]ny party may arrange to transcribe a deposition,” and such transcription may be completed after the deposition and will be transcribed based on the recording. Id.
Remember that the initial notice of deposition must specifically state which method(s) of recording will be used at the deposition. Fed. R. Civ. P. 30(b)(3)(A). However, “with prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.” Fed. R. Civ. P. 30(b)(3)(B). As a general practice, many attorneys may prefer the presence of a court reporter to record the deposition by stenographic means. This also would serve the purpose of having an officer of the court to administer the oath to the deponent, as well as providing someone to present the copies of the exhibits, if any, to the deponent. If a court reporter will not be present—either by choice of counsel or due to present limitations on in-person association—these issues will need to be addressed in another manner.
If you plan to use the deposition testimony at trial, or if such usage is even a remote possibility, then do not forget Rule 32(c), which provides:
Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise.
Fed. R. Civ. P. 32(c). Note that Georgia’s version of Rule 32 (O.C.G.A. § 9-11-32) contains no such parallel provision.
3. Deposition Exhibits.
Ideally, the remote counsel will have pre-marked the deposition exhibits and sent them to opposing counsel and/or the deponent to ensure that they can reference the exhibits when they are identified during the deposition. The downside of this approach, of course, is that the party noticing the deposition will lose the element of surprise, as the opposing party conceivably will have time to review the exhibits and formulate their responses before the deposition begins. Therefore, one alternative that a party may wish to consider is to provide the pre-marked exhibits to the court reporter or other officer of the court (if applicable), who can present the exhibits to the deponent upon request from the party during the deposition. If this option is unavailable, the noticing party may also consider sending the exhibits to opposing counsel and/or the deponent in a sealed envelope with clear instructions to leave the envelope sealed until the deposition begins.
4. Presence of Deponent’s Counsel.
As a practical matter, it is strongly encouraged for an attorney defending the deposition to be present with the client-deponent at the time of the deposition, to the extent reasonably possible given the present circumstances. This allows counsel to effectively confer with his or her client, lodge timely and effective objections, and otherwise preserve the attorney-client privilege for communications in a manner that may not be feasible if the attorney is participating in the deposition remotely. Consistent with his or her ethical duties, counsel must also communicate with the witness in advance of the deposition to prepare the deponent for questioning, but whether such a meeting can be held in person may be dictated by the circumstances at the time of the meeting.
5. Costs Associated with Remote Depositions.
One final relevant consideration is the costs associated with the various remote deposition options and whether, and to what extent the costs will be apportioned among the parties. As a general matter, the costs of the deposition are borne by the party noticing the deposition; however, in light of the present circumstances, there may be room for negotiation with the opposing party, as both sides may benefit from the taking of a remote deposition. On the other hand, while travel expenses certainly will be lessened, there may be a higher cost for organizing a live-streamed video deposition with multiple audio-visual feeds running concurrently than there would be for a simple telephonic deposition. When feasible, however, the added costs associated with a videoconference are accompanied by several benefits discussed above, including the ability to observe the deponent.
Finally, as noted above, Rule 30(b)(3)(B) provides the party defending the deposition the right to designate another method for recording the deposition in addition to the method stated in the notice, but such party must bear the cost of this additional recording.
C. Court Reporting and Videography Availability.
In response to the changing climate, court reporting services are expanding their services to better accommodate alternatives to traditional depositions. For example, Veritext Legal Solutions is offering a service known as “Veritext Virtual”, which is software that allows parties to conduct depositions on a webcam or by other remote means. Veritext also provides Veritext Exhibit Share, which allows parties to introduce exhibits electronically from a secure, private exhibit repository. Esquire Deposition Solutions is offering a similar service known as “Esquire Remote Court Reporting,” another software used to conduct video court reporting remotely. Likewise, Huseby is offering a similar service known as “HusebyConnect,” which allows parties to secure remote court reporting through a live video feed. Moreover, many court reporters in major cities offer dedicated centers for use in taking or defending depositions.
D. Another Alternative: Written Deposition Questions.
In addition to taking a deposition by telephone or videoconference, the Federal Rules of Civil Procedure and the Georgia Civil Practice Act provide another option to the parties: submitting deposition questions in writing. The parallel rules are largely identical and address two different scenarios: (1) submitting written questions to be asked of a deponent in a live, in-person deposition; and (2) conducting the entire deposition in writing. As to the first option, the rules provide that a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer, who will, in turn, ask the deponent those questions and record the answers verbatim during the live deposition. Fed. R. Civ. P. 30(c)(3); O.C.G.A. § 9-11-30(c)(2).
Alternatively, and more relevant to the present discussion, Rule 31 provides a means by which the entirety of the deposition may be taken in writing. See Fed. R. Civ. P. 31; O.C.G.A. § 9-11-31. Under this streamlined procedure, the party noticing the deposition must serve on all other parties the opening questions along with the notice of deposition; thereafter, the opposing party may serve cross-questions upon the noticing party within 14 days (Federal) or 30 days (Georgia). The noticing party may then serve redirect questions within 7 days (Federal) or 10 days (Georgia) of receiving the cross-questions, and the opposing party may then serve re-cross questions within 7 days (Federal) or 10 days (Georgia) of receiving the redirect questions. Id. After the questions have been finalized, an officer of the court takes the deponent’s testimony in response to the written questions, prepares and certifies the deposition, and sends it to the parties, attaching a copy of the questions and the notice. It is incumbent upon the party noticing the deposition under Rule 31 to arrange and pay for the deposition officer to conduct the written deposition under the procedures and guidelines outlined in Rule 28.
One advantage of a written deposition is that the process is streamlined and “the lawyers’ involvement occurs in advance, resulting in a package of all of the questions contributed by all of the parties [and] [o]n the day of the deposition, all that remains is for the officer to ask the questions and record the answers.” Steven S. Gensler & Lumen N. Mulligan, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 31 (Feb. 2020). This also is likely the most cost-efficient means of conducting a deposition and saves both parties and their counsel the expenses of travel (and, indeed, the expenses of attending the deposition altogether). In our current quarantine-limited state of travel, such an option may be more appealing than normal.
On the other hand, parties choosing to conduct a deposition in writing are deprived of all opportunities to interact with deponents, analyze the deponents’ verbal and non-verbal responses, and tailor their questions in real-time to adapt to the responses received from the deponents. See Scott v. Chipotle Mexican Grill, Inc., 306 F.R.D. 120, 125 (S.D.N.Y. 2015) (“Written questions are rarely an adequate substitute for oral depositions both because it is difficult to pose follow-up questions and because the involvement of counsel in the drafting process prevents the spontaneity of direct interrogation.”). Nor do written depositions provide counsel with the ability to clarify a question when the deponent may misunderstand what is being asked of him or her. Thus, such depositions may prove more useful for ancillary witnesses whose responses are relevant to the case but which do not require the same level of scrutiny as do key witnesses and parties to a dispute, such as a records custodian, or in instances where the deposition testimony is to be used for a limited purpose at trial.
E. Remote Document Collection, Review, and Production.
Due to the nature of their services, reputable eDiscovery providers already are well-positioned to deliver the remote, contact-free data collections, reviews, and productions necessary in the current environment. Troutman Sanders’ eDiscovery team, eMerge, conducts 99% of its collections remotely even under normal conditions. Remote electronically stored information collections that leverage WebEx or similar tools allow the collection team—typically including an interviewing attorney and a technical collection specialist—to view the custodian’s computer screen, conduct an interview to understand potentially relevant sources, and make immediate collection decisions that are extremely effective and reduce costs.
Remote document reviews require enhanced security measures and training for teams. Basic measures include dual-factor authentication into the review environment and remote access systems that can prevent reviewers from downloading, printing, or saving client data to their local computers. Additional security measures for remote reviewers, such as facial recognition software and other monitoring technology, may also be appropriate in some matters. Also important are workflows to support robust communication for quality control feedback and vital information-sharing among the review and case teams.
Hard copy collection, scanning, and production requires more creativity, but also is doable in this environment. For example, eMerge continues to have essential staff on-site with capabilities for scanning client documents and uploading them into databases for review and production. If physical documents are a problem, phased productions also are an option.
Successful navigation of eDiscovery with a remote and dispersed team requires the appropriate use of people, process, and technology. There may be challenges to this process, including navigating clients’ security protections against remote data transfers, collecting hard copy files, unforeseeable technology glitches, and adversaries who do not know how to properly download produced documents from secure transfer links (though many of these same challenges exist even in the best of times). You should coordinate closely with your providers and make sure you understand their capabilities and the timing needed to collect, review, and produce under changing circumstances. There are increased chances of potential delays caused by less than ideal home internet connections (especially those being shared by students suddenly home from school and streaming their classes), limitations on shipping and receiving physical media and paper files, and challenges in coordinating schedules of custodians already working under increasingly stressful conditions. Proactive planning for discovery has never been more important.
V. Hearings and Discovery Disputes.
While some courts have instituted what amounts to a freeze on pending litigation by cancelling all pending hearings and postponing all deadlines, others continue to operate—at least, to the extent possible—as if it is business as usual. This may pose an interesting dilemma for counsel currently engaged in the throes of litigation and who may have either a hearing scheduled with the court or find themselves in need of the court’s intervention, such as when the parties are unable to informally resolve a discovery dispute.
Adapting to this new reality may require counsel to first carefully review the respective court’s COVID-19 guidance and standing orders (if applicable) and, if that fails to provide any clarification, to reach out to the judge’s clerk for guidance on the judge’s preferred method for resolving disputes during a time in which person-to-person interaction is highly cautioned against. For example, the Northern District of Georgia specifically noted in its order that it “does not affect the Court’s consideration of civil … motions that can be resolved without oral argument.” Thus, to the extent that parties may draft and file non-dispositive motions that will not require a hearing, they are both permitted and encouraged to do so. Of course, it has become increasingly common for judges to hear certain disputes via teleconference, and this may be how virtually all disputes between the parties in civil cases are handled during this time of uncertainty.
Counsel also are encouraged to revisit any scheduling orders in their cases to determine whether and to what extent they may be revised to address these new circumstances. These revisions could include revised terms for presenting discovery disputes (i.e., by email or telephone if that is not already contemplated), extending certain deadlines, and even allowing for logistical changes like acceptance of electronic service and/or signatures if appropriate.
VI. Remote Mediation and Arbitration.
Another option for parties to consider during this time of uncertainty is the possibility of conducting mediation by either teleconference or videoconference. While such an option may seem foreign to attorneys who are accustomed to attending all-day mediation sessions at neutral sites, this practice has become more common. The Eleventh Circuit specifically recognizes the viability of remote mediation, providing:
Mediation sessions are held in person or by telephone. Counsel must, except as waived by the mediator in advance of the mediation date, have the party available during the mediation. Should waiver of party availability be granted by the mediator, counsel must have the authority to respond to settlement proposals consistent with the party’s interests …. The mediator may require the physical presence of the party at an in-person mediation or the telephone participation of the party in a telephone mediation.
U.S. Ct. App. 11th Cir. Rule 33-1. As mediation firms have become more robust, so too have their systems and capabilities become more expansive, and it is not uncommon to find mediation firms that offer full-scale videoconferencing and teleconferencing capabilities as a matter of course.
For example, in response to the impact of COVID-19, Miles Mediation & Arbitration is waiving all administrative and cancellation fees for clients through May 1, 2020, for all alternative dispute resolution engagements. Furthermore, neutrals currently are conducting a number of mediations through Zoom (as well as in person) and easily can hold virtual arbitration hearings. Finally, Miles is providing free video conferencing training for clients who need assistance.
Similarly, JAMS has a small team of managers onsite at its Resolution Centers. They also are offering video-conferencing for mediations and arbitrations. The American Arbitration Association (“AAA”) remains active and operational, but no hearings are taking place in AAA hearing facilities until after April 17. Case management staff is contacting parties/arbitrators to discuss alternative arrangements including videoconference, teleconference, or postponements.
VII. What’s Next?
That is a bit of a trick question, as we all are in uncharted territory as we navigate the spread of and response to the COVID-19 outbreak. Patience, flexibility, and creativity will be paramount for attorneys as we continue to adapt to these unique (and, lest we forget, temporary) circumstances and to zealously advocate for our clients in the interim. In the meantime, the attorneys in Troutman Sanders’ Litigation Section and the attorneys and technologists at eMerge stand ready to answer your questions and provide the necessary guidance to ensure that your interests and those of your clients are protected.
Many thanks to Chris Kelleher for his thoughtful and meaningful contributions to this article.
 The content of this document is based on laws, court decisions and orders, administrative orders and rulings, and congressional materials that existed on the date of publication. This document should not be construed as legal advice or legal opinions on specific facts. This publication is not intended to create or constitute an attorney-client relationship. If you have questions or concerns about any of the topics covered in this document, you should consult with an attorney.