Depositions During the COVID-19 Crisis

With 95% of the country presently subject to stay-at home orders due to COVID-19, many litigators are considering whether and how to take depositions in the coming weeks. Federal court responses have varied, from blanket extensions of civil deadlines to encouraging remote depositions. Whether it is advisable or even permissible to depose a witness under current circumstances will depend on several factors, including the jurisdiction, the deponent, and the anticipated substance of the deposition.

Many Courts are Extending Discovery Deadlines:

Numerous courts have issued administrative orders extending all civil deadlines due to COVID-19. The District of New Jersey, for example, in Standing Order 2020-04, extended all filing and discovery deadlines which fall between March 25, 2020 and April 30, 2020 by forty-five days. See also, Standing Order 3:20-mc-105 (D.S.C. Mar. 16, 2020) (extending all civil deadlines); Standing Order 20-0012 (N.D. Ill. Mar. 30, 2020) (same).

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Policing Bad Claims In Consolidated Litigation: Part 2

With the proliferation of consolidated litigation in recent years, various courts have lamented the lack of scrutiny often given to individual cases prior to filing in a class action or multidistrict litigation. Given the structure of these mass proceedings, individual claims frequently do not get meaningfully assessed. Against this backdrop, recent federal court decisions demonstrate courts’ increased willingness to police meritless claims by assessing whether counsel’s pre-suit investigation was adequate.

The first part of this article examined the obligation to conduct a pre-suit investigation under Rule 11 of the Federal Rules of Civil Procedure, and reviewed what different courts have said in recent years about meritless claims in mass litigation.

This part will discuss the importance of conducting plaintiff interviews, gathering basic information, avoiding language copied from dissimilar complaints and other issues.

Given the recent pronouncements of courts on the lack of scrutiny applied to individual cases in consolidated litigation, plaintiffs counsel should pay strict attention to Rule 11’s requirements prior to filing suit, particularly in a consolidated litigation, and defense counsel should be aware of the circumstances under which plaintiffs counsel’s efforts fall short of Rule 11’s requirements such that sanctions may be warranted. While the analysis is a factual determination that varies to some extent by jurisdiction, an examination of recent cases provides general guidance.

To read the full text of this article by Duane Morris attorneys Danielle N. Bagwell and Anne A. Gruner, please visit the Duane Morris website.

Policing Bad Claims In Consolidated Litigation: Part 1

With the proliferation of consolidated litigation in recent years, various courts have lamented the lack of scrutiny often given to individual cases prior to filing in a class action or multidistrict litigation. Given the structure of these mass proceedings, where claims are often resolved on a global level, with payout determined by the number of filings, individual claims frequently do not get meaningfully assessed.

This process has an obvious inherent risk of including meritless individual cases. Against this backdrop, recent federal court decisions demonstrate courts’ increased willingness to police meritless claims by assessing whether counsel’s pre-suit investigation was adequate.

The requirement that counsel conduct a meaningful pre-suit investigation is derived from Rule 11 of the Federal Rules of Civil Procedure. Rule 11 states that by filing a pleading, counsel represents that, to the best of their knowledge “formed after an inquiry reasonable under the circumstances,” the legal theories are warranted by existing law or nonfrivolous argument, and the factual contentions have evidentiary support or will have evidentiary support after a reasonable opportunity for further investigation.

To read the full article by Duane Morris attorneys Danielle N. Bagwell and Anne A. Gruner, please visit the Duane Morris website.