Recent orders by the Honorable Rodney Gilstrap in the Eastern District of Texas demonstrate the potential impact of foreign discovery during the pandemic.
In Canon, Inc. v. TCL Electronics Holdings Ltd. f/k/a TCL
Multimedia Technology Holdings, Ltd., Civ. Action No.
2:18-cv-00546, Judge Gilstrap recently granted-in-part a joint
motion to amend a scheduling order. (Doc. No. 167, May 22, 2020).
With fact discovery still pending and trial several months away,
the Court granted a modest extension of deadlines averaging 5-7
weeks. The Court noted that the parties "specifically
identif[ied] impediments" to conducting depositions of
foreign-based witnesses due to travel restrictions and states of
emergency given the ongoing COVID-19 pandemic. In light of this,
the Court granted the parties motion to amend the schedule
in-part.
On the same day, in SAS Institute Inc. v. World Programming
Limited, et al., Civ. Action No. 1:18-cv-00295, Judge Gilstrap
denied a motion to continue trial. (Doc. No. 354, May 22, 2020).
The parties had requested a 90-day extension of the trial date,
which was set for jury selection on July 6th, pointing to travel
restrictions of both domestic and foreign witnesses that would make
it difficult for witnesses to travel to pretrial proceedings and
trial. Judge Gilstrap explained that he found the motion premature
"[g]iven the constant evolution of the pandemic and of the
travel restrictions related thereto." The Court went on to
explain that the current restrictions impeding witness travel
"may very well change several times before the scheduled jury
selection." Consequently, the motion was denied, but the
parties were encouraged to "expeditiously pursue their
case" and "to seek similar relief at a later date, if
present impediments do not abate or are otherwise
modified/lifted."
These cases illustrate that the current status of the case in
conjunction with foreign restrictions can significantly impact
pending civil litigation. In the Canon case, a case
earlier on its in discovery timeline, the inability to take foreign
depositions was sufficient justification for delay. It is important
to note that the inability was dictated not by the parties, but by
the foreign jurisdiction itself. The US Embassy and Consulates in Japan have
indicated that there will be no depositions in Japan until
further notice. However, in the SAS Institute case, where
the necessary discovery has been completed, the possibility of
potential travel difficulties or restrictions in advance of a
scheduled trial more than a month away was not sufficient for delay
at this time.
Those extension requests that include more specificity regarding
the difficulty or outright impediments that COVID-related
restrictions pose for litigants may result in successful motion
practice; however, the current status of the case, the time to the
case deadline at issue, and the current domestic and foreign
restrictions are all significant factors likely to influence the
court's decision.
Article originally published on 29 May 2020
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