The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life.  However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it can be invoked to obtain an extension or continuance with respect to discovery obligations.

This was recently demonstrated by Sunstate Equipment Co., LLC v. EquipmentShare, in which the District of Utah held that the defendant, EquipmentShare, could not stay already noticed, in-person depositions by simply pointing to the COVID-19 pandemic.  In late November 2020, the plaintiff, Sunstate Equipment Co., LLC, sent deposition notices to EquipmentShare seeking in-person testimony of EquipmentShare’s witnesses at Sunstate’s counsel’s office.  In response, EquipmentShare moved for a protective order seeking to delay the in-person depositions as-noticed and requesting certain depositions, in the meanwhile, to be conducted remotely from its counsel’s office with its counsel either physically present in the same room as the deponent or a nearby room.  Notably, prior to moving for a protective order, EquipmentShare had rejected Sunstate’s proposal for entirely remote depositions in lieu of the depositions as-noticed.

While the court “acknowledge[d] the magnitude of the COVID-19 pandemic and the serious health challenges it presents,” it observed that the “pandemic is not a golden ticket to get out of discovery obligations.”  The court noted that other courts had been “creative during the current health crisis” but that such creativity did not include “creating advantages for one party over another” in conducting depositions.  Accordingly, the court concluded that both parties’ counsel had to be present for any in-person depositions, and that any remote depositions had to be conducted with “everyone using remote technology.”

This decision signals that courts are anxious to keep cases moving forward, despite continuing outbreaks of the virus.  As such, litigants in the midst of discovery should, among other things, attempt to reach stipulations with opposing counsel as to any delays or extensions, or be prepared to proceed with their calendared discovery obligations.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Michelle M. Ovanesian Michelle M. Ovanesian

Michelle Ovanesian is an associate in the Litigation Department, where she focuses on intellectual property and life sciences. Michelle has worked on a range of matters in federal district courts, including serving on the trial team in the Amgen Inc. v. Sanofi remand.…

Michelle Ovanesian is an associate in the Litigation Department, where she focuses on intellectual property and life sciences. Michelle has worked on a range of matters in federal district courts, including serving on the trial team in the Amgen Inc. v. Sanofi remand.

In addition to intellectual property and life sciences, Michelle’s practice has encompassed a variety of other legal matters, including pro bono veterans services, commercial disputes and bankruptcy.

Photo of Laura Stafford Laura Stafford

As a Litigation senior counsel, Laura Stafford focuses her practice on complex business disputes, with a particular emphasis on bankruptcy litigation. Recently, she has had a lead role in representing the Financial Oversight and Management Board for Puerto Rico in litigation involving the…

As a Litigation senior counsel, Laura Stafford focuses her practice on complex business disputes, with a particular emphasis on bankruptcy litigation. Recently, she has had a lead role in representing the Financial Oversight and Management Board for Puerto Rico in litigation involving the restructuring of Puerto Rico’s finances. In that capacity, she has, among other things, managed the claims reconciliation process while litigating numerous other adversary proceedings and contested matters.

Laura has litigated a range of matters in the federal courts, including serving on the successful trial teams in MobileMedia Ideas v. Apple and ADREA v. Barnes & Noble, as well as before the International Trade Commission. She is experienced in all stages of the litigation process, including pre-suit due diligence, discovery, summary judgment and trial.

In addition, Laura maintains an active and diverse pro bono practice, with a focus on immigration law and gun control issues. She has secured permanent residency for numerous unaccompanied minors immigrating to the United States.  She has also filed numerous amicus briefs in federal and state court supporting the constitutionality of legislation.

Prior to joining Proskauer, Laura worked for the New York County District Attorney’s Office as a paralegal in the Frauds Bureau.