It started even before the lockdown went into effect. As news of the Coronavirus hit and panic and uncertainty started to take effect in varying degrees across the country, the delay requests started coming in – each one unique in its own right and requiring legal practitioners to constantly ask themselves, “am I being reasonable here?” I am talking about discovery delays in the face of a global pandemic. Since the last pandemic of this scale occurred over 100 years ago, this means that we have no effective “benchmark” as to what requests seem reasonable and how to keep our cases moving.
At first, we all watched helplessly as trial dates got pushed out – mostly well into 2021 – with the increasing realization that even those dates may need adjustment as the judicial system accounts for an ever-increasing backlog. The purpose of this article is to discuss common discovery impacted by the pandemic and strategies for keeping your case moving.
As an initial matter, trial court judges are vested with broad discretion in maintaining the orderly proceedings of discovery. Under the Superior Court Civil Rules, “the trial court exercises a broad discretion to manage the discovery process in a fashion that will implement the goal of full disclosure of relevant information and at the same time afford the participants protection against harmful side effects.” Rhinehart v. Seattle Times Co., 98 Wash.2d 226, 232, 654 P.2d 673 (1982). Protection orders under the Civil Rules are “meant to protect the health and integrity of the discovery process, as much as to protect the parties who participate in it.” Id. at 231, P.2d. “The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
These principles have perhaps never been put to the test so much in the past as they are in present day. Several common issues to be addressed in this framework are discussed below.
Specific discovery issues
DMEs: Perhaps the most widely fought issues in proceeding with discovery these days is that of defense medical exams (DMEs). Oftentimes, we as plaintiff attorneys are representing folks with preexisting or underlying conditions. In the personal injury context, many plaintiffs do not represent the picture of good health on the best of days – often due to defendant’s conduct. To add insult to injury, these same plaintiffs are then asked to submit to a DME exposing them to greater risk of becoming seriously ill, or worse. In the past, DMEs were typically considered one of the “check marks” needed to be marked off by insurance defense counsel in preparing a case for trial, and judges routinely sign-off on requests for DMEs even when challenged.
DMEs are governed by CR 35, which provides in pertinent part:
When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
As noted, in the past, judges have taken an exceedingly expansive interpretation of the phrases “when the mental or physical condition of a party … is in controversy” and “the order may be made only on motion for good cause.” However, with the arrival of COVID, the willingness to “rubber stamp” these requests has been increasingly challenged as DMEs typically occur in tiny rooms with little to no air circulation, are conducted by medical personnel and staff who often work in hospitals where COVID is present, and, audaciously, DME doctors and insurance defense counsel are increasingly requiring plaintiffs to sign COVID waivers when they present for the DME.
Given the uncertainty and, to date, lack of uniform judicial response to DME requests in the time of COVID, one way to combat these issues is to negotiate with counsel as to the manner and terms of a DME. Pre-COVID, defense counsel routinely failed to even disclose the scope of a proposed DME – simply forwarding the name of the practitioner they intended to use and expected plaintiff’s counsel to simply comply and make the arrangements knowing that a Judge would grant their request. Those days should be firmly in the past in the present state of affairs.
For instance, it is common knowledge that about half of a typical DME consists of the practitioner going through a plaintiff’s prior medical history. It is completely unnecessary to do this in-person in the time of COVID and constitutes an unnecessary prolonged exposure when this information can easily be obtainable by the practitioner’s review of the medical records and/or a Zoom or phone call with the plaintiff (attended by counsel) prior to the DME. Agreeing to this simple compromise can literally cut potential exposure time in half. Attorneys should also insist prior to any DME that no waivers are to be signed regarding exposure to the virus. It is recommended that you consult with a medical professional prior to agreeing to a DME to inquire as to appropriate protocols. Depending on your client, it may be inappropriate to agree to a DME at all, or you may be able to arrive at compromises including conducting the DME in a larger conference room, having the plaintiff wait outside instead of in a waiting room, or even having the DME conducted via Zoom or similar technology. There are multiple compromises that can be made to protect the safety of everyone involved.
Every case and every plaintiff present their own unique set of circumstances and what may be right for one case may not be appropriate for another – particularly in the matter of an in-person DME during the pandemic. Whether you choose to litigate the issue by fighting a request for a DME outright, or merely to add additional precautions, you should contact your client’s treating physician or other appropriate medical professional to determine the best course of action for your client. At a minimum, you should be prepared to submit a declaration by a medical professional to support your position, inform, and educate the court as to why a DME as usual, or no DME at all, would be appropriate.
Depositions: Another hot issue these days is that of conducting depositions. In the early days of the pandemic, it was a common tactic of insurance defense counsel to postpone depositions rather than conduct them remotely in the supposed interest of seeing if “things got better” and in-person depositions could be had. This short-lived tactic of course never worked and has largely been abandoned. In King County, there is a presumption that depositions will be conducted remotely; https://www.wdtl.org/files/FILED-Emergency-Order18-KCSC-200120505.pdf. Even where a county does not have this presumption language, there is often language in favor of promoting social distancing. Moreover, courts have increasingly taken an antagonistic view of claims of delay due to an inability to conduct in-person depositions in the days of COVID. In Ogilvie v. Thrifty Payless, 2020 WL 2630732 (May 12, 2020), the Western District of Washington denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the impact of COVID on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court succinctly stated: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.” Id.
Some defense counsel, insurance defense and otherwise, still take the position that in-person depositions – particularly for those of the plaintiff – are nonetheless justified. Much like a request for a DME, you should evaluate these requests based on the particular circumstance of your case and be prepare to submit a declaration from a medical professional should you be required to litigate this issue. But simply “waiting for things to get better” is an ill-advised course of action.
Particularly with insurance defense counsel, this author has experienced counsel seeking to delay a deposition because “my company wants me to be there in person but I’m afraid to fly.” While I sympathize with anyone’s desire to resist travel at this time (I certainly would not want to), an insurance company’s “policy” in this regard is completely irrelevant. In fact, when this author has pushed back on requests to delay based on defense counsel’s desire not to travel, miraculously the company changed its “policy” and the deposition went forward remotely without incident.
Other issues in the context of depositions are becoming increasingly more and more widespread. Even in King County where remote depositions are presumed, questions arise whether defense counsel should be permitted to attend a fact witness or expert witness’s deposition in person while plaintiff’s counsel questions remotely. Be wary of defense counsel attempting to use these restrictions and social distancing recommendations to their advantage. It may become obvious at the beginning of the deposition that the deponent is looking to the off-camera defense counsel for guidance on how to, or if they should, respond to certain questions. You should call this behavior out immediately and on the record. Depending on the circumstances, it may be advisable to have multiple recording devices utilized so you can view the defendant and their counsel simultaneously. You should also inquire as to the whereabouts of the deponent’s phone at the beginning of the deposition as messages can be sent through that medium. Additionally, in remote depositions, your deponent is looking at you through their computer screen. If they are not looking at a document you are showing them through your “share screen” function, it is fairly obvious when they are reading something else on their screen. You should insist at the beginning of your deposition that all email programs are shut down and get the deponent’s assurances of compliance on the record. Most importantly, if something seems off, address it right away.
Inspections: Inspections take many forms depending on the type of case and circumstances involved. In the past, it was normal practice for all parties to attend an attorney-requested site inspection (perhaps accompanied by support staff) as well as one or more experts. This often resulted in a number of people crammed into close quarters. Obviously, such inspections would be ill-advised at this time. However, a satisfactory “work around” may be achieved by allowing counsel and experts to examine the site in shifts, or even to have an attorney or staff member videotape a site inspection should it be impractical for your expert to travel.
Evidence inspections can also be easily accomplished during the time of COVID. Potential solutions include conducting inspections or examinations outside or in a facility large enough to allow for proper social distancing. Many issues with inspections can be ironed out ahead of time. That will require you to do additional work prior to the inspection to arrive at agreements with your opposing counsel to assure you can accomplish these tasks in an efficient matter with hopefully now surprises.
There is still considerable uncertainty with how trial dates will be progressing as we continue to grapple with this national pandemic and the large backlog of cases. While some counties have started civil trials, this is typically on a much smaller scale. Even trial dates in 2021 are questionable at this time. However, this should not be used as an excuse to continence delay. Most discovery can still take place with a little bit of extra planning. We do not know how courts are going to ultimately deal with this considerable backlog of cases, and you should be moving your cases along to the best of your ability so you are ready to go when you get the green light from the court. What is becoming increasingly obvious is that courts will not be willing to entertain further continuances based on COVID alone. We are blessed to be in a profession that continues to move along in spite of challenges brought about by the pandemic, and we are entrusted by our clients to diligently and zealously advocate on their behalf. Do not let reluctance to embrace Zoom depositions, alternative inspections, or altered DMEs, among other discovery activities, delay your case preparation. Afterall, as the saying goes, never put off ‘til tomorrow what you can do today.
By Heather M. Cover
Heather Cover is an EAGLE member focusing on products liability, sexual abuse, and catastrophic injury claims at the Law Offices of James S. Rogers in Seattle. She is 2nd vice-president of membership on the Board of Governors and serves as chair of the Products Liability Section.