An interesting article by Mark Klapow, Amanda Shafer Berman, Andrew Holmer and Eli Berns-Zieve from Crowell & Moring looking at how the U.S. courts are managing discovery through the Covid-19 crisis. It is interesting to see that different courts in different states are taking differing views, but there seems to be a consistent view that discovery cannot be stopped entirely because of the crisis.
What is certainly true is that in most cases the discovery process can continue with only a few limitations. In certain situations, it will simply not be possible to acquire data. However, with the wide range of technology available to us now, there are solutions to be found. In many instances a change in process is all that is required.
At Alvarez & Marsal, our forensic professionals have the ability to work closely with custodians, IT support or the person with custody of the device, providing clear and concise instructions on how to make the remote collection run seamlessly from start to finish.
Also, with more people working from home, there is a continuing erosion of the gap between personal and business applications and data. We have to remember that sources such as LinkedIn messages, Facebook messenger and WhatsApp! have always been a consideration when performing collections, so this really is nothing new. With the exposure of these non-traditional sources, I expect we will see an increase in their relevance in future discovery matters and any firm must take this into consideration.
If you'd like to learn more about how we are dealing with the situation, please see my article on Linked In or give me a call.
...many courts have issued standing orders delaying civil case deadlines. Litigants should note, however, that discovery-related deadlines set pursuant to statute, local rule, or case-specific scheduling orders have sometimes been excluded from the blanket extensions...For example, while the Northern District of Illinois’ 39-day blanket extension order explicitly encompasses discovery deadlines, the District of Maryland explicitly exempted the conduct of discovery in civil cases from its 84-day extension of other civil filing deadlines. And although California state courts have suspended all jury trials for 60 days, that order does not appear to extend to discovery deadlines...It is therefore important for litigants with active cases to consider whether and how any COVID-related delays impact pending discovery deadlines—and if standing delay orders do not provide any relief from discovery obligations, consider whether such relief may be warranted.