Litigating in the COVID Environment – Lessons Learned

Obviously the coronavirus pandemic has affected and continues to affect all aspects of the economy. The legal industry is no different. We are IP and FDA litigators. To this end, we can share some our insights on effective litigation during this pandemic.

  1. Lawsuits Have Not Decreased

Our work is primarily in the fields of IP, FDA regulatory, and related commercial litigation. We have not seen significant decrease in the cases being filed in these areas. First, companies have been working on pushing medical products through the R&D pipeline, so the coronavirus is not stopping that development. Second, the FDA is working still. While FDA workers may not be in the FDA office itself, FDA workers for many years have been working off-site as most (if not all) files are electronic anyway. We are not noticing any significant delay in the FDA review cycles.  However, we have noticed that FDA inspections have slowed, but we are working with the FDA to still get drug/device approvals without onsite inspections. As with many entrepreneurial spirits, we have been seeing an uptick in medical product manufacturers being caught making undue claims about their products. For example, we have been helping clients resolve disputes when caught making claims about coronavirus cures, antiseptic properties, %’age of virus killed, mask protective abilities, etc. 

Furthermore, commercial & contract litigation is still moving along. We have been representing clients in traditional contract law disputes. We have noticed an uptick in commercial litigation relating to contract breaches and whether such breaches are excused under the so-called Force Majeure clauses in the contract. 

  1. Working Remotely & Technology

We are fortunate that we can work fully remotely. Our clients are across the nation and the world. Through remote working, we have seamlessly provided services to clients. As with many law firm, we have full access to phones, emails, network servers, etc. We also communicate using video services like Zoom and Teams.  Certainly improvements in technology help. 

Though, technology has made it effective to still provide legal services, we make some observations. First, in our firm, we moved to VOIP phone systems years ago. This way our office phone rings directly to the computer or cell phone. This means we do not need to rely on desktop phones at the office anymore.  We highly recommend softphones, quality headsets, and hard-wired internet versus cell phones, simple ear pods, and unstable WiFi. In one hearing, the opposing counsel just dropped off the line because he was on WiFi and it dropped. Hard wire is much more stable. We also found that bandwidth tends to drop once children log into remote school (say around 8 am) or at 3 pm when school is over and online video gaming begins. 

Furthermore, as mentioned earlier, we are fully in the cloud and that allows us instant access to our files no matter where we are. 

  1. Court Depositions and Hearings 

Court proceedings had to adapt too. Taking depositions by video is the new norm. It is not ideal but litigation cases have to move along. Technology has allowed the videographer, court reporter, litigation counsel, and the witness to be in different locations. We found that a couple of things greatly matter. First, it may be effective to have the documents sent to the witness ahead of time, with the commitment that the box is not opened until the witness is on camera. Second, it’s helpful for the witness to be videoed in a manner where the video testimony could be shown at trial. Therefore the witness should be in good surroundings, a green screen if possible (flat matte background), with good sound. We find that a witness should have a speakerphone hooked up versus trying to use ear pods, etc. It won’t look good to a jury that the witness is wearing ear pods or headset. The environment also matters. The witness has to be in a place where pets, other people, doorbells are minimized.

Court hearings pose a different challenge. We found that yet again technology matters. We have been on joint calls with the judge where the judge complains that one party cannot be heard because the lawyer is on a cell phone speaking through earphones/ear pods. Or there is background noise. We find that a quality USB speakerphone is more stable and has better clarity. Trials are posing a challenge. Many courts are changing court configurations to allow for jury trials. The jury could be in another room, counsel either in the same court room but distanced. Courts are working hard to ensure that cases move along. But we do note that because criminal trials get precedence over civil trials, typical IP infringement and contract actions are being pushed down the line. 

We recently had a few appellate oral arguments but encountered some unexpected issues. First, in our typical oral arguments, we try to be respectful to the judge when the judge asks the questions and we stop talking to allow the judge to speak. But over the phone, it is difficult to see when the judge is about to speak and we stop. So there were periods of talking over the judge (or the judge talking over us). Reading body language was impossible by the phone. In one argument, the opponent shuffled a lot of papers and the phone picked that up. It was very distracting and one judge asked the counsel to repeat something said. We recommend counsel also lay down a towel or blanket on the table to avoid cup clinking or book banging sounds. Naturally when you are not speaking, go on mute so that background noise is eliminated. Recall that a U.S. Supreme Court justice flushed the toilet during an oral argument; it was the flush heard around the nation. There was one benefit of oral argument by phone though. Typically a counsel may bring a binder to the podium. Over the phone, however, we were able to hang many large posters with points and citations so that we had instant access by sight. We crammed a lot of info onto those posters. 

An unintended consequence of COVID has been witness availability. For example, we represent companies across the globe. However, due to travel and quarantine restrictions, it is sometimes impossible to get witnesses to the US. First, any witness traveling to the US might have to quarantine for 1-2 weeks before meeting with any counsel in person or attending any court hearing. And upon return home (if at all), that same witness may be required to further quarantine. As such, travel to the US for court may require almost a month of quarantine on both ends of the trip and the company may not be able to tolerate the absence from work. 

Finally, it is important to note that COVID will now rarely reset court deadlines. With electronic filings being the norm, courts generally do not grant extensions of filings anymore. 

Upadhye Tang LLP is an IP and FDA boutique firm concentrating on the pharmaceutical and medical device spaces. We help clients with navigating the legal landscape by helping on counseling and litigation. Clients call us to help move drug and device approvals along and to represent them in IP and commercial litigation. Call Shashank Upadhye, 312-327-3326, or by email: shashank@ipfdalaw.com, for more information. 

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