The global spread of coronavirus is changing the way judges approach their duties.
In written opinions last week, U.S. Magistrate Judge Gabriel A. Fuentes set out a protocol in two unrelated lawsuits — one stemming from a fall in a store and the other from a car crash — for seeking to depose medical professionals or treatment providers during the COVID-19 pandemic.
The protocol will allow him to determine whether the burden of requiring a particular medical provider sit for a deposition outweighs the likely benefits, Fuentes wrote in his opinions.
Citing Geiger v. Aetna Life Insurance Co., 845 F.3d 357 (7th Cir. 2017), he noted judges have wide discretion in handling discovery in civil cases.
“The [c]ourt’s discretion includes taking steps that, notwithstanding their impact on the speed of the ultimate determination of the matter, recognize the severity of the public health crisis and the role of courts and litigants in being public citizens during the crisis,” Fuentes wrote Friday in the slip-and-fall case, Bonita Lipsey v. Walmart Inc., No. 19 C 7681.
Part of being a public citizen, he wrote Tuesday in the car crash case, involves considering a medical professional’s involvement in fighting the pandemic when determining whether it is necessary to depose that professional.
“It 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,” Fuentes wrote in Sandra DeVine, et al. v. XPO Logistics Freight Inc., et al., No. 18 C 1264.
“All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit.”
Other judges also are including the coronavirus pandemic as a factor in deciding motions in civil cases.
For example, in a trademark-infringement case, U.S. District Judge Steven C. Seeger on Wednesday declined to set an immediate hearing on the plaintiff’s motion for a temporary restraining order.
The plaintiff alleges the defendants are infringing its trademarks by placing its drawings of unicorns on such products as puzzles, purses and phone cases.
Seeger had previously scheduled a hearing on the motion for a few weeks in the future. He had reasoned a short delay in the midst of a global pandemic would help protect the health and safety of the lawyers and court staff as well as the public.
The plaintiff then filed a motion to reconsider. Before Seeger ruled on that motion, the plaintiff filed a motion for a temporary restraining order before the judge designated to hear emergency matters.
Seeger denied the motion to reconsider before the other motion came before the emergency judge.
“The world is facing a real emergency,” Seeger wrote in his order. “Plaintiff is not.”
The case is Art Ask Agency v. The Individuals, Corporations, Companies, Partnerships and Unincorporated Associations Identified in Schedule A Hereto, No. 20 C 1666 (N.D. Ill. March 18, 2020).
In his opinions in both Lipsey and DeVine, Fuentes cited Federal Rule of Civil Procedure 26(b)(1).
The rule allows parties to obtain discovery on any nonprivileged, relevant matter considering such factors as “the importance of the issues at stake in the action” and “the importance of the discovery in resolving the issues.”
Another factor to consider, according to the rule, is “whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Fuentes also cited Rule 45, which allows courts to quash or alter a subpoena if complying with the subpoena would impose an “undue burden” on a person.
Fuentes’ protocol requires lawyers for the parties to discuss — over the phone — the list of medical providers they intend to depose.
The lawyers must try to agree whether those depositions should proceed. Or they may decide to put off the depositions until a settlement conference is held.
The lawyers must submit a status report to Fuentes by April 10.
For those providers who will be deposed, the party seeking the deposition must submit a response to the protocol disclosing the provider’s name, hospital affiliation and area of practice or specialty.
The response also must disclose the provider’s current or anticipated involvement in responding to the pandemic and the extent of his or her involvement in the treatment of the plaintiff.
Other information to be disclosed includes the provider’s relative importance to the case and possible alternative ways to obtain the same information.
A party must object to deposing a particular witness within 10 days after the response is filed.
The parties may not subpoena any medical witnesses absent an order from Fuentes.
Bonita Lipsey’s attorney, Chester L. Cameron Jr. of Taxman Pollock Murray & Bekkerman LLC, praised Fuentes’ “judicial insight and practicality.”
“Certainly, I am a zealous advocate for my clients and love to keep cases moving toward their trial dates, but I cannot compel medical professionals into depositions when the health of the nation is at stake,” Cameron wrote in an email.
This is the first time he has been required to follow such a protocol, he wrote, but also the first time since he began practicing law that the courts have shut down most operations.
“Unprecedented times call for unprecedented measures,” Cameron wrote. “We all have to do our part to fight this pandemic off, and if that means having a deposition protocol, I take no issue with that or any reasonable delay that might be created by it.”