How Litigation Strategies Shifted Under Covid-19

Kirkland & Ellis partner Tasha Francis Gerasimow reflects on how Covid-19 has impacted litigation practices. Besides spurring the adoption of remote technologies, she says the pandemic has influenced attorneys’ decisions on where to bring suit, discovery, and strategy leading up to trial.

The legal community has explored and implemented novel ways to handle clients’ cases in the midst of the Covid-19 pandemic. Virtual depositions are now becoming the norm and courts have even found ways to conduct trials remotely, with jurors and witnesses attending by video—virtually unheard of just a few years ago.

But, beyond spurring adoption of remote technologies, Covid-19 has shaped the legal strategies pursued in litigation spanning from where to bring suit, to discovery, and strategy leading up to trial.

Choosing Where to File Suit

To start, parties are currently re-evaluating where lawsuits are filed based on how courts have modified their procedures in light of Covid-19.

Some courts, such as the Central and Northern districts of California, have suspended all jury trials, causing a backlog of cases. In contrast, other courts such as the Western District of Texas have generally remained open during the pandemic, and are experiencing lesser delays.

Therefore, while forum has always been an important strategic decision, parties are now evaluating a new factor: the impact of Covid-19 on time to resolution.

Discovery Delays

Covid-19 has also caused significant delays and disruptions in discovery efforts, leading parties to assess the value of delayed discovery and develop creative ways to progress their cases.

For example, in many instances, document production has been significantly delayed because Covid-19 regulations limit access to the relevant facilities, such as client offices hosting documents. Sometimes these facilities were shut down for months at a time, without access by employees.

As yet another example, the ability to depose foreign witnesses has been impaired. Some countries, like Germany and Japan, prohibited remote depositions, requiring depositions to be conducted in person at local embassies or consulates. However, diplomatic offices have been and remain closed on account of Covid-19 and significant delays are expected once they do open.

To account for these delays, parties have proposed stipulations obviating the need for certain discovery, at times in exchange for admissions. In addition, parties have proposed creative case schedules to accommodate discovery postponed or otherwise conducted out of turn because of Covid-19.

Considering Jurors’ Perspectives on Covid-19

In addition to shaping the scope of discovery, parties are also mindful of the impact of Covid-19 on jurors’ perspectives in cases taking place during the pandemic and are submitting legal briefing to curb the impact of the pandemic on resolution of the case.

This observation is readily apparent from review of recent motions in limine filed in advance of trial, particularly those involving pharmaceutical companies and defendants with foreign interests.

For example, parties have moved to exclude any attempt to capitalize on the goodwill associated with pharmaceutical companies and vaccine development efforts. Parties have also sought exclusion of evidence and argument concerning the negative impacts a particular verdict might have on its Covid-19-relief efforts.

These motions are similar to motions parties regularly filed in the pharmaceutical space prior to Covid-19, where parties would seek to exclude commentary trading on goodwill associated with pharmaceutical companies. They differ, however, in that they are much more focused on the current pandemic, which has personally impacted most jurors and vaccination status has become a hotly debated political issue.

And such motion practice is not limited to pharmaceutical cases. Parties with foreign interests have sought exclusion of “any reference to China’s connection” to the Covid-19 pandemic or a party’s “connection” to the Covid-19 pandemic.

Parties have similarly sought prohibition of “derogatory, pejorative or prejudicial statements” about a defendant as a foreign company or the origins of Covid.

Another distinction from prior practice, which is a unique consequence of the remote practices adopted during Covid-19, are motions seeking to avoid “disparaging any parties, counsel or witnesses for attending trial remotely” due to the Covid-19 pandemic.

Generally speaking, the parties have reached agreement on these Covid-19 related motions in limine such that the courts have not had to weigh in. However, in instances where the scope of the request was perceived as too broad or overreaching, or where parties have a legitimate reason to discuss Covid-19 related activities as part of their claims or defenses, the parties fail to reach agreement and require judicial intervention.

In those instances, courts address the breadth of the request and tend to balance it with the scope of the claims and defenses in the case.

Unsurprisingly, the same issues raised in motions in limine are appearing in voir dire questions directed to prospective jurors, where parties are seeking to evaluate jurors’ perception of the scientific, social, and political issues surrounding Covid-19. Courts remain mindful of the current issues associated with Covid-19 and have continued to work to ensure that the pandemic does not influence verdicts.

In sum, Covid-19 has been a disruptive force in many aspects of society, and litigation is no different. In addition to the logistical challenges and solutions that the pandemic has brought, we have also observed Covid-19 itself driving substantive litigation positions and resolutions.