The Washington Post had recently described Montgomery County’s nine-story courthouse as “typically buzzing with activity: trials, plea hearings, weddings in the first-floor chapel,” with between 1,500 and 2,000 persons entering the building each day for various reasons.
But then on March 16, the newspaper portrayed the building as being “barren,” except for a murder trial that had started a week earlier, and which ended two days later when Judge (and former Lerch Early partner) Harry Storm declared a mistrial with the jury hopelessly deadlocked.
The normally busting courthouse was devoid of activity for the same reason so much of this country’s normal activities have ground to a halt: COVID-19. In a way, the murder trial’s anticlimactic conclusion – which left the prosecution, the defendant, the court, and the victim’s family grasping for answers and wondering what might come next – serves as a perfect metaphor for American life during the coronavirus pandemic. And it certainly reflects the uncertainties that face litigants and lawyers across the nation.
So what comes next? To address that question, let’s first look at what has happened in Maryland over the past couple weeks and what that could mean for the future.
Maryland Court of Appeals
Maryland’s Court of Appeals Chief Judge Mary Ellen Barbera, issued a series of Administrative Orders starting on March 12 restricting activities in Maryland state courts, and the pace and steadily increased scope of those restrictions demonstrate the severity of the situation. You can see the full timeline of the judge’s orders at “Maryland Court of Appeals Coronavirus Timeline.”
In short, state courts in Maryland are essentially closed, with no hearings, trials, or other proceedings, except for certain categories of emergency matters that are specifically designated in the March 16 Administrative Order. Courts are encouraged to hold proceedings by remote electronic participation, where possible. Court, however, continue to accept filings, both electronically in those jurisdiction covered by MDEC and in paper, either by mail or drop box. And all “deadlines established by Maryland statutes or rules remain in effect.”
As the circuit court and District Court sitting in each county and Baltimore City might have slightly different protocols or procedures, litigants and their counsel should check with the local court in which a case is pending to get further guidance.
Federal Court in Maryland
What about the federal court in Maryland? Well, Chief Judge James K. Bredar of that Court has acted in ways similar to the steps Chief Judge Barbera took, starting with a Standing Order issued March 11 and continuing through his own series of orders. You can see the full timeline of the judge’s orders at “U.S. District Court for the District of Maryland Coronavirus Timeline.”
Much like matters in Maryland’s state courts, proceedings in the United States District Court for the District of Maryland are largely suspended, but unlike deadlines for matters pending in state courts, the deadlines in federal district court proceedings have been extended.
Similarly, the United States Court of Appeals for the Fourth Circuit (which handles appeals from federal district courts in five states, including Maryland) has restricted access to its courthouse in Richmond, Virginia; has temporarily suspended paper filings and is relying solely on electronic filings; and has postponed oral arguments scheduled for March 17-20 and April 7 (although arguments may be heard by teleconference or video-conference).
What Does This Mean for Litigants and Their Lawyers?
In Maryland state courts, deadlines have not been extended. Thus, absent an Order entered in an individual case, deadlines established by Rules and scheduling orders remain in effect, including discovery deadlines and deadlines for designation of expert witnesses.
Given discovery’s importance in civil litigation, and given the time, energy, and resources dedicated to its pursuit, discovery is probably at the forefront of our concerns as litigators. Even under the best of circumstances, discovery causes anxiety and stress. But the present situation makes discovery even more angst inducing.
For example, if the public is expected to engage in social distancing, and not gather in groups of more than a very few people, how are depositions expected to go forward? Technology can help. Depositions may be taken via electronic audio or audio-visual means and there are court reporting services that are able to provide these services and are very experienced in doing so.
The Key is Cooperation
The key to dealing with these problems, however, is cooperation between counsel. Guideline 1 in the Discovery Guidelines of the Maryland State Bar Association stresses cooperation, reasonableness, and collegiality:
Among other things, parties should communicate regarding the efficient sequencing of discovery; alternatives or modifications to discovery otherwise permitted that would permit discovery to be completed in a more just, speedy and inexpensive manner; and means by which discovery may be completed within time periods set forth in any scheduling order issued by the Court or as otherwise set forth in the Maryland Rules.
A similar cooperative approach should be pursued in cases pending in federal court. There, Chief Judge Bredar’s Orders have extended deadlines and thus a little more leeway exists. Plus, all cases in federal court are specially assigned to a judge, which generally makes case management easier than a system where several judges might touch some aspect of a case.
And much like the MSBA’s Discovery Guidelines, the Discovery Guidelines of the United States District Court for the District of Maryland stress cooperation, reasonableness, and collegiality. Guideline 1 instructs that the Guidelines are intended “to facilitate the just, speedy, and inexpensive conduct of discovery in civil cases before the Court,” and litigants and lawyers are required “to cooperate in planning and conducting discovery to tailor the discovery to ensure that it meets these objectives.”
Counsel should meet and confer to discuss what discovery is needed now, what discovery can deferred until later, and what alternative arrangements might exist. Where appropriate, those arrangements should be memorialized in a proposed Consent Order for submission to the court.
As Judge Paul W. Grimm has frequently urged (both in his present position as a district judge and his prior one as a magistrate judge), parties and their counsel are expected to engage in “cooperation rather than contrariety, communication rather than confrontation” in conducting discovery. If there was ever a time where those words ring especially true, it is now.