As we previously reported, as a result of the COVID-19 crisis, courts across the country are adjourning most appearances, including trials, and hearing only “emergency matters,” often by teleconference or other remote methods. This presents a new quandary for trade secret and restrictive covenant lawyers, who regularly must seek emergency injunctive relief to protect their clients’ trade secrets and customer goodwill. But it does not follow that these lawyers should be careless about when to seek emergency relief; in fact, quite the opposite, they must be more diligent in that regard during the current pandemic.
As we discussed previously, in Art Ask Agency v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A hereto, C.A. No. 20-cv-1666 (March 9, 2020), a recent trademark and copyright case involving unicorns, Judge Steven Seeger of the US District Court for the Northern District of Illinois issued a scathing order denying the plaintiff’s “emergency” motion to reconsider a previous scheduling order, holding: “The world is facing a real emergency. Plaintiff is not.”
Well, another court confronted the issue of what constitutes a true “emergency” during the COVID-19 pandemic, and once again decided against the moving party, finding that a routine discovery dispute is not an emergency. In C.W. v. NCL (Bahamas) Ltd., No. 1:19-cv-24441-CMA (S.D. Fla. March 21, 2020), the defendant filed “an emergency motion for a protective order . . . concerning a routine snafu over the date of a corporate representative deposition.” (emphasis in original). Magistrate Judge Jonathan Goodman of the US District Court for the Southern District of Florida was not impressed. In response, and not to be outdone by Judge Seeger, he issued his own scathing opinion, in which he felt “compelled to offer some observations in the ‘let’s-keep-things-in-perspective’ department”:
The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.
We are living in an unprecedented situation.
Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits “emergency” status.
No, it doesn’t.
Local Rule 7.1(d) requires a movant seeking emergency relief to certify that a “true emergency” exists because meaningful relief could not be provided on “a critical, non-routine” issue within seven days. (emphasis added).
A spat over the specific day of a corporate representative deposition is hardly critical. It is, in fact, routine.
Moving past the incorrect and, frankly, reckless designation of this dispute as an “emergency,” the Undersigned is shocked that counsel could not on their own resolve the issue. Given the health and economic crisis we are in, not postponing the deposition scheduled for next week is patently unreasonable.
If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.
It is painfully obvious that counsel for both sides failed to keep their comparatively unimportant dispute in perspective. Would the world end if the corporate deposition did not occur next week? Obviously not. Is it reasonable to require defense counsel to prepare the 30(b)(6) witness for a deposition while complying with the social distancing standard of ten feet? Absolutely not. Is it rational to expect defense counsel to enlist assistance from cruise ship attorneys and other employees (e.g., to track down documents and information) to adequately prepare the corporate representative when the entire cruise ship industry is on lockdown and thousands of employees have been let go? Of course not.
So the deposition will not be taken next week. Life will go on. But the Undersigned will be requiring counsel for both sides to appear for a hearing at some point, even if they work out the rescheduled date for the corporate deposition. That hearing will require the attorneys to explain their behavior in context of the far-more-important issues this Court (and the entire world) is facing.
According to Law360, in a separate case, Judge Goodman “had a similar reaction to a defendant’s refusal to agree to adjourn discovery deadlines and a trial date in light of the pandemic. (‘I had to read the certification twice to make sure I was reading it correctly.’).” In that case, which Judge Goodman declined to identify so as to avoid embarrassing counsel:
He ordered the lawyer to file a memorandum containing “all the reasons justifying his opposition,” and urged that he “brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, pubic spirit, social conscience, and empathy.”
So there you go. Picayune discovery disputes that may seem like an emergency in the moment often are not, and they most certainly are not during an actual “health and economic crisis.”
Law360 reported on a similar issue in the Theranos case currently pending in the US District Court for the Northern District of California. According to Law360, “[d]uring a telephonic status conference, U.S. District Judge Edward Davila told [former Theranos CEO Elizabeth] Holmes’ attorney . . . that he was ‘a little taken aback’ by the way their proposed order [permitting counsel to violate shelter-in-place orders to prepare for the upcoming trial] was phrased. The judge said bringing the crisis to the court’s attention wasn’t necessary:
“I have to tell you sir, I read [the document] and I was a little concerned,” the judge said. “You’re basically filing a motion in essence asking the court to violate orders in the midst of a national crisis … I look at the order and the tone of it is, ‘If you want us to go forward with this hearing, you’re going to have to violate [orders across jurisdictions]. And that’s what we’re asking you to do in a very publicly filed way.’ I think perhaps we should have a rational discussion about it, as opposed to ‘If you want the trial, then this is what you need to do.’”
For real emergencies, such as actual trade secret misappropriation or customer poaching, emergency injunctive relief is still an option that should be strongly considered and pursued in appropriate circumstances. And while some of these decisions are fun to read, attorneys sometimes find themselves at the mercy of the courts, which have kept their doors open to “emergency” matters during these unprecedented times, but have largely failed to define exactly what that means. And it is often easier said than done to come to an agreement with opposing counsel about extending deadlines and similar issues (in particular in contentious cases that have long histories), and an attorney’s obligation to zealously represent his or her clients’ interests is, of course, not altered because the courts are temporarily less accessible. Nevertheless, litigators should be smart and thoughtful before running into court for “emergency” relief on less than compelling facts, and in particular on discovery disputes. And if an emergency injunction is not a viable option under current conditions, or if it is delayed or does not fully remediate the harm, damages always remain an option.