A Precautionary Tale: District Courts Take Varying Measures As In-Person Trials Appear on the Horizon

April 5, 2021

Alexandra K. Kim, Kevin Y. Li

This article is part of Wolf Greenfield's COVID-19 Resource Center. To access the full resource center, click here.


Roughly a year after lockdowns occurred nationwide, its impact on the country’s federal court system is still being felt. While the strain of the pandemic and its attendant restrictions are universally being felt within the court system, not all jurisdictions are alike when it comes to the precautions deemed necessary to proceed cautiously with in-person trials. These differences span the gamut—with some jurisdictions cancelling in-person jury trials indefinitely and others implementing precautions and technological upgrades to make in-person proceedings possible.

District of Massachusetts

The District of Massachusetts has emphasized caution in their decisions regarding in-person proceedings. The court initially issued a pair of orders on March 12, 2020 in line with this approach. General Order 20-1 restricted courthouse access to any persons who were at risk of being exposed to COVID-19, while General Order 20-2 continued all jury trials in the district set to begin before April 27, 2020. The court supplemented the latter order on May 27, 2020 with General Order 20-21, which continued all jury trials beginning before September 8, 2020.

The District of Massachusetts then began to relax these restrictions with General Order 20-31, which allowed for a limited number of in-person, non-jury proceedings, and General Order 20-35, which superseded General Order 20-1 and allowed individuals back into the courthouse provided that they wore masks and met the requirements of a health assessment.

However, citing concerns over a spike in COVID-19 cases and the emergence of newer variants of the disease, a January 11, 2021 standing order issued by Judge Mastroianni cancelled all in-person court proceedings in the Western Division of the United States District Court for the District of Massachusetts until March 29, 2021. The order allowed exceptions on a case-by-case basis, and noted that civil and jury-waived trials could be excepted if adequate procedures were put in place for an in-court/virtual hybrid proceeding. An in-person bench trial and case management conference have since appeared on the Springfield division’s docket.

During the Federal Bar Association’s Joint Court Operations Panel held on March 16, 2021, Clerk of Court Robert Farrell provided a glimpse into what future in-person proceedings will look like. He noted that the District’s plan was to limit the number of potential jury members in the courtroom during voir dire to twenty-five individuals. Clerk Robert Farrell also iterated that due to the pandemic and the backlog of cases, the Court has cases stacked for this upcoming summer.  While the data on the backlog for the federal court systems is not clear, a recent article entitled Massachusetts trials in pandemic: Wheels of justice simply stop turning, indicates cases statewide are significantly behind. In a non-pandemic year, there are 1,849 jury trials every March to September, spanning across district, juvenile, and superior court cases. As quoted by WCVB, “That’s more than 1,800 jury trials that have not happened so far this year.”

Northern District of California

The Northern District of California has similarly taken a cautious approach. In the beginning of the pandemic, the District vacated or postponed any civil jury trials till June 1, 2020, which was further postponed to September 30, 2020. In General Order No. 72-6, jury trials and bench trials could proceed in accordance with the court’s safety protocols. However, as of 2021, due to state and local stay home orders, the Northern District of California released an announcement on their website suspending all in-person proceedings (except for grand jury proceedings) until February 15, 2021.

Although there has been no general order regarding in-person proceedings since, during a pretrial conference on March 26, 2021 about specific antitrust case, U.S. District Judge Gonzalez Rogers spoke of the safeguards planned for the in-person trial scheduled for May. Only six people will be allowed in the courtroom at Oakland’s Ronald V. Dellums Federal Building and United States Courthouse. The press and the public will not be able to attend the trial, but only listen to a live audio. Witnesses will wear a clear mask and the parties’ legal teams can wear cordless mics so they may be heard. Additionally, the legal teams may meet in the unused juror rooms or attorney lounges. It remains to be seen how other courts will proceed in the spring now that coronavirus cases are on the decline.

However, in a December 2020 status conference hearing relating to an employment discrimination case, U.S. District Judge William Orrick III also spoke of the precautions that will be in place in the Northern District’s San Francisco courthouse once jury trials resume. Discussed in Law.com’s Not a Simple Story’: How 2021 Trials Will Go Down in One Northern District of California Courtroom, juror members will be selected from the counties within the Northern District with the lowest risk of infection and transmission.  Specifically, jurors will be pulled from the two lowest-risk tiers set by the State. The court will require everyone in the courtroom to wear masks with one exception—witnesses.  To facilitate jurors’ visibility of testifying witnesses, witnesses will wear clear face shields with the added protection of plexiglass separating witnesses from the rest of the courtroom. Jurors will be spread out, with only four jurors in the jury box and the rest in the gallery. Voir dire will proceed in three stages: (1) screening potential jurors for COVID-related concerns; (2) sending questionnaires to determine who will be relieved for hardship; and (3) having a subset of potential jurors (twenty individuals at a time) advance to the court for jury selection. To ensure each case has sufficient alternates in the event jurors are dropped during the course of the trial, for COVID-related or other issues, each jury will have twelve members. The district plans to try two cases at a time at each court and cases will be selected for trial using a lottery process. Judge Orrick III said that cases are backed up till 2022.

As of now, Judge Orrick III has rescheduled Contour IP Holdings LLC v. GoPro Inc. No. 3:17-cv-04738 (N.D. Cal. 2020), a patent jury trial case, from August 2020 to May 6, 2021. It appears that trials will begin to pick up in the spring, as Judge Orrick III also has a jury trial and jury selection scheduled for April 26, 2020 for Drakeford, et al. v. Capital Benefit, Inc., et al., No. 3:20-cv-04161-WHO (N.D. Cal. 2020).

District of Delaware

The District of Delaware has also exercised caution during the ongoing public health emergency. The District implemented a phased-reopening plan, consisting of four phases: (1) a “soft” reopening where a limited number of attorneys and staff could enter the court; (2) non-jury civil and criminal trials could resume; (3) jury trials could resume; and (4) building occupancy returns to 100%. In 2020, after delaying jury selection and jury trials four times, the District landed on October 5, 2020 as the date jury trials could continue. The District issued Jury Trial Restart Guidelines on October 7, 2020.

However, after a month of being in Phase III, the District issued an order on November 16, 2020 and returned to the Phase II, effectively pausing jury trials, and leading them to be postponed. For example, U.S. District Judge Richard Andrews postponed the trial date for ChanBond LLC v. Atlantic Broadband Group LLC, No. 1:15-cv-00842 (D. Del. 2020) from August 19, 2020 to May 17, 2021. After first postponing deadlines, the court in TQ Delta LLC v. 2Wire Inc., No. 1:13-cv-01835 (D. Del. 2020) also indefinitely postponed the trial.

Despite the jury trial suspension, litigants in the District of Delaware have found ways to keep their cases moving toward resolution. Some parties have opted for bench trials or dispute resolution instead of jury trials. See, e.g., Wonderland Switzerland AG v. Evenflo Co. Inc., No. 1:18-cv-01990 (D. Del. 2020) (parties agreed to convert the jury trial into a bench trial with Judge Andrews as the presiding judge).

Additionally, under Phase II, bench trials have still moved forward. In the beginning of 2021, the District held two patent bench trials—the first since March 2020. In January, U.S. District Judge Maryellen Noreika presided over a four-day bench trial in Vifor Fresenius Medical Care Renal Pharma Ltd. v. Lupin Atlantis Holdings SA, No. 1:18-cv-0039 (D. Del. 2021). In January, U.S. District Judge Leonard Stark presided over a 14-day bench trial in H. Lundbeck A/S v. Lupin Limited, No. 1:18-cv-00088 (D. Del. 2021) Meanwhile, hearings in patent cases have continued to take place remotely.

With vaccine distribution increasing and infection rates decreasing, the District of Delaware released a statement on March 12, 2021 anticipating that the District will advance Phase III in June. We will see how the District of Delaware continues to move forward in their reopening plan.

Southern District of New York

Like the District of Delaware, the Southern District of New York has utilized a phase approach in reopening its courthouses. Chief Judge McMahon issued a April 20, 2020 standing order suspending jury trials in the district, and also introduced a four phase re-entry plan, with jury trials resuming in the third and fourth phases.

The district moved into the third phase on September 23, 2020, resuming jury trials while introducing a number of new health and safety protocols. Judge McMahon prioritized criminal cases over civil cases for these trials. However, one notable civil trial that was held during this time was Syntel Sterling Best Shores Mauritius Limited v. The Trizetto Group, Inc. et al., No. 1:2015-cv-00211 (S.D.N.Y. 2020), in which a jury found misappropriation of trade secrets and copyright infringement and delivered a $855 million verdict for the plaintiff.

In light of increasing COVID-19 cases, Judge McMahon issued a standing order on November 30, 2020 suspending in-person operations in the district. The suspension was later extended through February 12, 2021. Since then, in-person proceedings have begun to resume. One notable recent proceeding was the criminal case of USA v. Weigand, No. 1:20-cr-00188 (S.D.N.Y. 2021). During the trial, which lasted from March 1, 2021 until March 24, 2021, one juror tested positive for COVID-19 and was replaced, while another was excused and replaced due to COVID-19 concerns at the school of the juror’s child.

Several recent scheduling orders have identified trial dates in May 2021, suggesting that civil jury trials may be set to return to the district in the upcoming months. Courtroom attendants will have to abide by Judge McMahon’s February 16, 2021 standing order, which restricts access to persons with a high risk of COVID-19 exposure and sets forth safety guidelines such as social distancing, face coverings, and entry screening.

Northern District of Illinois

The Northern District of Illinois has similarly been flexible in their approach while navigating through the pandemic. The Northern District has released ten separate orders regarding the Coronavirus COVID-19 Public Emergency, with at least five of them ordering that in-person civil proceedings be rescheduled to a later date. The most recent order, the 10th Amended General Order, No. 21-0006 issued on February 21, 2021, stipulated that all civil jury trials be suspended until April 5, 2021. All civil hearings, including bench trials, will be conducted remotely, unless an in-person hearing is otherwise required by law.

When in-person jury trials can resume, the U.S. District Chief Judge Rebecca R. Pallmeyer has released an order titled “In re: Plan for the Safe Resumption of Jury Trials and Court Applications” that details the COVID-19 testing protocol to take effect at Chicago’s Everett M. Dirksen Courthouse and  in Rockford’s Stanley J. Roszkowski U.S. Courthouse. The Northern District will collaborate with SHIELD Illinois, an organization that conducts coronavirus screening using a “non-invasive”, saliva-based test developed by University of Illinois researchers. The test provides results within 24-hours after the sample.

The Northern District is going a step further than other districts by requiring these COVID-19 tests for all court employees and empaneled jurors. The court employees’ test results will not be provided to the employer, but the employee is required to report positive test results to them. Court employees may not be tested more than twice a week; empaneled jury members will be tested twice a week. For potential jury members, the Court will ask for consent prior to testing and will consider religious or medical objections. For those tested, all positive test results will be reported to the Illinois Department of Public Health in accordance with the Illinois Control of Communicable Diseases Code.

Testing negative for the COVID-19 virus does not supersede the requirement of wearing masks in the court, as per the Amended Order released on February 18, 2021.

Western District of Texas

Not all judges have decided to forgo in-person civil jury trials for the time being. Judge Albright of the Western District of Texas recently presided over two in-person patent trials. The first, MV3 Partners LLC and Roku, Inc., No. 6-18-cv-00308 (W.D. Tex. 2020), took place in October 2020.  The second, VLSI Technology LLC and Intel Corp., No. 6-21-cv-00057 (W.D. Tex. 2021), concluded just weeks ago.

For the latter trial, Judge Albright issued a thirteen-page order detailing COVID-19 safety requirements and guidelines for his courtroom. The order featured mandatory daily testing for all trial participants, jurors, and court staff. A negative result was required to enter the courtroom. Inside, jurors were required to wear N-95 masks at all times except for when eating, drinking, or deliberating six feet apart. Party-affiliated trial participants and witnesses were encouraged to wear masks at all times when not speaking. Temperature checks, air purifiers, and the use of plexiglass around the witness stand were some additional precautions mentioned in the order. Judge Albright also imposed a restriction on the number of people allowed inside the courtroom at one time, allowing a maximum of six trial participants per side. An overflow room with a live feed was provided for no more than thirty additional participants. The video was made available to trial parties and witnesses while the audio was provided to the public.

Judge Albright has emphasized his implementation of updated technology in order to make these new procedures possible. He has spoken about completely renovating his courtroom technology before the later trial in order to allow features such as simulcasting, which is the broadcasting of an event over several mediums or platforms. 

Eastern District of Texas

Like its counterpart in the Western District, The Eastern District of Texas has also resumed in-person jury trials. The district held its first in-person trial since the onset of the pandemic in August 2020, and proceeded to hold trials without incident until November 2020. After a jury heard five days of testimony in the case of ResMan, LLC v. Karya Property Management, LLC et al., No. 4:19-cv-00402-ALM (E.D. Tex. 2020) in early November 2020, fifteen courtroom attendees eventually tested positive for COVID-19 which led Judge Mazzant to declare mistrial and schedule a retrial for 2021. This development also factored into Chief Judge Gilstrap’s decision to issue orders on November 20, 2020 reluctantly suspending three patent trials scheduled for December 4, 2020 until at least March 2021.

Some of these postponed trials have occurred without incident in recent weeks. The March 8, 2021 retrial of the ResMan case resulted in a finding of breach of contract and misappropriation of trade secrets by the defendant and a $152 million verdict for the plaintiff. Likewise, a five-day trial in early March 2021 in the case of Solas OLED Ltd. v. Samsung Display Co., Ltd. et al., No. EDTX 2:19-cv-00152 (E.D. Tex. 2021) resulted in a finding of infringement and a $63 million verdict for the plaintiff. The resumption of in-person jury trials in this district as well as the large verdicts that have resulted from them may draw plaintiffs to the Eastern District of Texas in order to enforce their rights.

Conclusion

A year after entering the pandemic, it continues to have evolving circumstances. We will see how the courts continue to adjust and shift.

As in-person court proceedings increase in frequency, some additional questions remain for how courts will handle new situations. For example, if a jury member tests positive for COVID-19, will an alternative be called or will the trial be suspended?  Additionally, some counties have been hit harder by the pandemic. Will the empaneled jury still be representative of the cross-section of the community? And now, with the phased roll-out of vaccines, will this impact the jury pool available for the trial?

While the districts have not expressly spoken on these issues, it is anticipated that courts will continue to be flexible and cautious in their approach as the country weathers through the public health emergency. The district courts discussed above have—across the board—placed public safety as a top priority, and it is anticipated the courts will only continue to do so as we enter what is hopefully the tail-end of the pandemic.