Technology-Related Court Sanctions During the COVID-19 Pandemic
Failing to comply with court orders, attend depositions, or miss deadlines can become costly decisions resulting in monetary sanctions or other disciplinary actions. As litigants and courts continue to grapple with the impact of COVID-19 and its variants, the rise of technology and remote attendance have enhanced the risk of sanctions.
Court reaction to COVID-19 varied by jurisdiction. In Spring 2020, many federal and state courts issued general guidance that automatically suspended key filing deadlines, and postponed non-essential hearings or proceedings. Some jurisdictions, however, only suspended certain types of hearings. And in others, no suspensions or postponements occurred. As the court system begins to more fully reopen, parties must keep track of the varied and evolving rules to avoid sanctions.
Missed Court Proceedings, Depositions, and Deadlines
The most common situation during COVID-19 that resulted in sanctions occurred when parties failed to attend court proceedings or depositions.
Failing to attend online depositions continues to be the primary cause for sanctions. If conflicts arise, parties needing to postpone depositions to a later date must seek approval from either the opposing party or the court; they cannot simply not show up. In some ways, conducting depositions remotely is now easier than before the pandemic, as they often do not mandate extensive travel or robust coordination among the parties. Also, many courts have been hesitant to accept pandemic-related excuses for a party’s failure to attend depositions without seeking prior approval. Some courts, in addition to imposing sanctions on noncompliant parties, have gone so far as to dismiss actions altogether for a party’s failure to comply with court-ordered depositions.
As the COVID-19 pandemic lead to court closures and bans on in-person hearing, most court proceedings moved online using services such as Zoom, Microsoft Teams, or Skype, parties failed to attend for numerous reasons—whether related to COVID-19 or not. However, absent any extension from the court, parties are still required to attend and participate in all online court proceedings. A failure to attend would be the equivalent of failing to show up for an in-person proceeding, which puts parties at risk for sanctions by the court, including contempt. Courts have imposed sanctions against virtual no-shows to encourage future compliance with court orders.
A court may also award sanctions for failing to meet previously-set deadlines, regardless of pandemic-related delays. This is especially true regarding discovery delays, in which a party’s failure to respond to opposing counsel’s requests may necessitate sanctions and potential dismissal of claims. When significant aspects of litigation occurs online, parties still have the same obligations as if it were in-person. In one instance, a federal court in Nevada awarded sanctions against a party based on its failure to attend an in-person psychiatric examination without prior court approval for non-attendance. Even though the absent party noted concerns surrounding potential exposure to COVID-19 as the reason for the missed appointment, the moving party was awarded “no-show” fees associated with the absence.
Some courts, however, have been more accommodating of missed deadlines by refusing to enforce sanctions against noncompliant parties. In one case, a federal court in Florida refused to award sanctions against a party for technical difficulties during a Zoom mediation. The party was unable to appear visually, but was present by telephone; nevertheless, the lack of video caused the mediation to be rescheduled. In denying sanctions, the court found that the delay in the court-ordered mediation did not rise to the level of noncompliance that warranted discipline. Similarly, courts have granted extensions and refused to impose sanctions for a failure to attend depositions when deponents were quarantining from possible exposure to COVID-19. These examples show that advance notice and legitimate justifications for noncompliance may alleviate some risks of court-imposed sanctions.
Advice to Clients Navigating Litigation
Parties should not assume that, because of the COVID-19 pandemic, case deadlines will be extended or absences forgiven because of a court’s physical closure. The best practice for parties undergoing disruptions related to the COVID-19 pandemic is to seek extensions directly from the court. Courts have been adaptive in providing extensions based on the unanticipated setbacks posed by the pandemic; however, extensions are neither guaranteed nor indefinite. Parties should do everything in their power to meet deadlines and abide by the stipulations agreed to at the outset of litigation. Doing so will help prevent courts from sanctioning a party for missing deadlines, failing to attend depositions, or general noncompliance with court orders.
With the increased use of technology, the temptation to record a hearing, especially a contentious one, may be hard to resist, but resist you must because recording, copying, photographing, or rebroadcasting any court proceeding conducted online is a violation of federal law and prohibited in almost all state and federal jurisdictions. Attorneys and litigants that violate this prohibition run the risk of sanctions, which may include suspension of their license to practice, referral to the state bar association, denial of the right to appear by video or telephone at future proceedings, criminal prosecution, contempt, denial of admission to future hearings, and any other sanctions deemed necessary by the court.
*Special thanks to Summer Associate, John Barrett, for his contributions to this article.