The Impact of Foreign-Based Witnesses on COVID-Related Requests for Extensions

May 29, 2020

Gregory F. Corbett, Marie A. McKiernan

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

Recent orders by the Honorable Rodney Gilstrap in the Eastern District of Texas demonstrate the potential impact of foreign discovery during the pandemic.

In Canon, Inc. v. TCL Electronics Holdings Ltd. f/k/a TCL Multimedia Technology Holdings, Ltd., Civ. Action No. 2:18-cv-00546, Judge Gilstrap recently granted-in-part a joint motion to amend a scheduling order. (Doc. No. 167, May 22, 2020). With fact discovery still pending and trial several months away, the Court granted a modest extension of deadlines averaging 5-7 weeks. The Court noted that the parties “specifically identif[ied] impediments” to conducting depositions of foreign-based witnesses due to travel restrictions and states of emergency given the ongoing COVID-19 pandemic. In light of this, the Court granted the parties motion to amend the schedule in-part.

On the same day, in SAS Institute Inc. v. World Programming Limited, et al., Civ. Action No. 1:18-cv-00295, Judge Gilstrap denied a motion to continue trial. (Doc. No. 354, May 22, 2020). The parties had requested a 90-day extension of the trial date, which was set for jury selection on July 6th, pointing to travel restrictions of both domestic and foreign witnesses that would make it difficult for witnesses to travel to pretrial proceedings and trial. Judge Gilstrap explained that he found the motion premature “[g]iven the constant evolution of the pandemic and of the travel restrictions related thereto.” The Court went on to explain that the current restrictions impeding witness travel “may very well change several times before the scheduled jury selection.” Consequently, the motion was denied, but the parties were encouraged to “expeditiously pursue their case” and “to seek similar relief at a later date, if present impediments do not abate or are otherwise modified/lifted.”

These cases illustrate that the current status of the case in conjunction with foreign restrictions can significantly impact pending civil litigation. In the Canon case, a case earlier on its in discovery timeline, the inability to take foreign depositions was sufficient justification for delay. It is important to note that the inability was dictated not by the parties, but by the foreign jurisdiction itself. The US Embassy and Consulates in Japan have indicated that there will be no depositions in Japan until further notice. However, in the SAS Institute case, where the necessary discovery has been completed, the possibility of potential travel difficulties or restrictions in advance of a scheduled trial more than a month away was not sufficient for delay at this time.

Those extension requests that include more specificity regarding the difficulty or outright impediments that COVID-related restrictions pose for litigants may result in successful motion practice; however, the current status of the case, the time to the case deadline at issue, and the current domestic and foreign restrictions are all significant factors likely to influence the court’s decision.