FRCP 1 and COVID-19

• Author: Brian A. Zemil
• Pages: 20-20

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

It is early April. The bi rds are chirping, the leaves are

sprouting, and the g rass is a vibrant green. Nature thi s

spring looks just like spr ings in the past; meanwhile

COVID-19 has cha nged everything else, includ ing

how we practice law. This pandem ic has forced attor-

neys, clients, a nd many judicial ofcers out of their of ces

and into unchar ted legal territory. These substantia l dis-

ruptions and uncer tainties have required a re-ex amination

of the America n legal system, i ncluding whether and when

courthous es should remai n open, litigants may acces s court-

rooms, trial s should proceed, and pro ceedings occur via

remote technolog y.

COVID-19 has t riggered a judicial wate rshed moment,

and we are reevaluatin g how we do justice. Technology has

empowered courts and p arties to nd ne w ways to cooper-

ate, while attorne ys’ esprit de corps has bre athed new life

into the Federal Rule s of Civil Procedure . When this column

is published, many COV ID-19–related changes wi ll likely

reect our new nor mal and reveal our c ommitment, or lac k

thereof, to Rule 1 of the Federa l Rules of Civil Procedure.

The December 2015 am endment to Rule 1 was prescient

in emphasizing t he principle of collaboration and creating

an obligation for court s and parties to work together toward

the goal of a just conclusion. Th e Rule 1 committe e notes

explain that t he amendment seeks to e mphasize the foun-

dational charge t hat the court and parties now “share t he

responsibility to employ the r ules” in order “to secure the

just, speedy, and inexpe nsive determination of every action.”

The notes fur ther explain that we cooperate to improve the

“administration of c ivil justice” by avoidin g “over-use, mis-

use, and abuse of procedu ral tools that increase cost and

result in delay. Effective advoc acy is consistent with—and

indeed depends upon —cooperative and proportional use of

procedure,” the notes conclude. T he collaboration principle

is more pressing now tha n ever and provides a lens th rough

which the rules s hould be interpreted a nd applied during

and after COVI D-19.

Attorneys who fail to apply t he fundament al principle

of cooperation during C OVID -19 will likely face censo r or

sanctions from a cou rt system desperately trying to pr iori-

tize justice.

Judge Drummond’s column i n this issue (see p. 28) dis-

cusses a decision c alling out an attorney’s failure to appre-

ciate the cooperation a nd reasonableness nece ssary during

these challen ging times . The decision hig hlights that, at least

during COVI D-19, Rule 1 requires a nd courts expe ct greater

cooperation t han ever before.

Parties must, t herefore, carefully evaluate every cou rt

ling and lit igation request based on the needs of the litiga-

tion, time rema ining for discovery or motions practic e, and

expectation s of the specic cou rt in which their case is pend-

ing. Demandi ng that courts compel an opposing par ty to

collect and produce pa rticularly critical elec tronically store d

information mig ht be reasonable; trying to compel that s ame

party to gather h ard-copy documents from a current ly shut-

tered ofce mig ht not. Routine matters, such as scheduli ng,

can be handle d by telephone or videoconferen ce.

While the U. S. Supreme Court is now conducting oral

argument s telephonically, counsel should ant icipate the same

in other court s nationwide, even if the case appears not ame -

nable to online judgin g. Before requesti ng a different met hod

of argument, con sider if the reasons are compelling and

weigh them again st the strain that COVID -19 has placed on

the judicial syste m, acute demand for more cr itical in- person

hearings, a nd threats that delay might pose to cour t-set

deadlines. Working re motely at home heightens con dential-

ity-related con cerns as basic attorney- client communication s

require care: th e presence of family m embers or home smart

speakers that ca n record your conversations could threaten

the condentia lity of your advice.

You also should consult Federal Rules 28 , 29, 30, and

32, as well as cour t-speci c local rule s and standing orders,

to evaluate when depositions t hrough remote mean s should

proceed. If any problem s arise, preserve your objection in

the event future cou rt intervention is necessar y and subject

to the requirements of t he jurisdic tion in which the depo-

nent—not the questioner— sits. The remote admi nistration

of the oath also pose s special considerations, as some juris-

dictions requi re that a court reporter be a notary a nd physi-

cally present whi le a witness testies. A stipul ation to accept

an oath admin istered remotely by a specic reporter or

express waiver of any object ions to such proceedings should

address any concerns.

COVID-19 has cha nged how we fulll our Rule 1 prom-

ise. Our present ch allenges force us to con sciously put Rule

1 in the front seat of our ca lculus rather than in the back-

seat, as too frequently pra cticed in the pa st. Many disci-

plines— science, philosophy, psychology, faith—have much

to say about what we should be doing in th is unprecedented

moment, and Rule 1 offer s a lot of wisdom to help our prac-

tice during COV ID-19. When we reach the other side of this

pandemic, his tory will reect how technology en abled the

safe admini stration of justice and, hopefully, how well we

respected the ad ministration of justice and one anot her as

sisters and brothers of t he bar.

Digital versio ns of the Civil Procedure s tories, including lin ks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

FRCP 1 and COVID-19:

Litigating Through a Pandemic

By Brian A. Zemil , Litigation News A ssociate Editor

20 | SECTION OF LITIGATIO N

CIVIL PROCEDURE UPDATE