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18 March 2020

Covid-19 IP Update: Impact on litigation

The Hogan Lovells IP & Media Technology team remains fully operational and working well remotely to support clients and to continue to provide our high-quality services. We are closely following the impact of Covid-19 on the operation of Courts around the world and what this means in practice for clients engaged in or contemplating litigation, with respect to upcoming hearings, deadlines, and limitation periods. We will keep you up to date on court guidance as it develops and share our expectations and experiences as we go through this challenging time.

Netherlands

Proceedings on the merits in the Netherlands are continuing as normal as possible. This means that new cases can be filed and the exchange of written submissions continues as usual. Until 6 April, oral hearings are postponed unless high urgency demands otherwise. Oral hearings in such cases will not be open to the public, but a limited number of people from the procedural parties may attend. The Courts continue to render judgments.

Preliminary relief proceedings can still be filed. The Judge will strictly assess whether the case is sufficiently urgent given the current circumstances. In very urgent cases, the Judge may set an oral hearing date relatively quickly. If this hurdle is not met, then the request for preliminary relief proceedings will remain on file but the Judge will then not schedule a hearing date before 6 April. This will be assessed on a case by case basis.

UK

Currently UK courts and tribunals are continuing to operate as usual. HM Courts and Tribunals Service (HMCTS) says that any changes to individual hearings will be communicated directly to those affected in the usual way, usually by email and/or phone. The Lord Chief Justice has said that the immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters. However, he has also stated that there will be an urgent need for increased use of telephone and video technology where that is possible.

Our experience to date is that, while hearings are currently going ahead as planned, individual Judges are open to varying hearing arrangements to accommodate difficulties stemming from Covid-19, including to limit the number of people needing to attend in person.  Further, the Law Society of England and Wales has indicated that it is discussing with HMCTS the possibility of all litigation deadlines (including limitation deadlines for issuing proceedings) being automatically suspended/extended for two to three months.

We anticipate that UK courts will be understanding about difficulties parties may face in attending hearings in person and in meeting certain deadlines.  Further, it seems likely that HMCTS's position may change in the coming days.  However, as matters stand, we recommend that where Covid-19 will make it difficult or impossible to comply with existing directions, clients should consider with their legal teams the need to pro-actively seek a court order varying directions for hearing arrangements (such as to provide for attendance by video-link or phone) and/or varying upcoming deadlines.

U.S.

United States Federal Courts have been monitoring the national response to Covid-19, including guidance provided by the Centers for Disease Control and Prevention (CDC), Administrative Office of the United States Courts, and individual state departments of public health. Over the past week, courts have widely instituted orders to govern courtroom logistics, including mandates to postpone jury trials and in-person hearings in some jurisdictions. We have seen new orders being issued increasingly over the past few days, particularly in view of President Trump’s recent declaration of a National Emergency and the CDC’s recommendation to cancel events consisting of fifty people or more.

While the orders can vary by jurisdiction, most trial courts have postponed jury trials for several weeks, some over a month (into the first week of May). The trial court orders are subject to change as the situation evolves, but once jury trials are allowed to resume, criminal trials will generally be prioritized over civil trials, due to constitutional rights of criminal defendants to speedy trials. Thus, trials for IP cases may not resume until Summer of this year, or later. Additionally, in most jurisdictions, if the assigned trial judge believes a hearing is necessary, then the judge has been urged, or in some jurisdictions mandated, to conduct such hearings by telephone or video conference. Matters or issues that can be decided on the papers will generally continue to be handled as such.

For now, we have not seen the same level of restrictions for appeals courts. Mostly, oral hearings and arguments are being permitted to carry on as scheduled. We have, however, seen advisory notices and administrative orders issued restricting public access to certain appeals courts and allowing only counsel and parties to appear at the courthouse for their respective scheduled argument or hearing.

With court orders being instituted across the country, clients should be mindful that there will likely be new restrictions and limitations on in-person courthouse activities in the near term. We generally expect judges to be flexible with case rescheduling, as may be necessary and practicable on a case-by-case basis. Most of the restrictions we have seen so far, however, apply mostly to trials and in-person hearings. Already-pending case schedules and procedural rules establishing other deadlines (e.g., for motions, discovery, other written submissions) may not be suspended by these new administrative orders.  The court in the Eastern District of Texas recently declined to extend discovery deadlines in a case in view of COVID 19 concerns, urging instead that the parties conduct depositions by video or other means. Therefore, it will be important for clients to consult with legal counsel to understand the specifics of any new directives in the jurisdictions for their respective cases.

How we can help

We hope that we will be able to overcome this emergency very soon and that we will be stronger than ever. We thank you for your support and are available for any clarification you may need. For further advice and insights to help your business respond to the legal and contractual challenges coronavirus presents, please visit our COVID-19 Topic Centre.

For more information, please contact Ruud van der Velden.