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Client Alert: Massachusetts State Courts Begin to Adjust for Civil Litigation in the COVID-19 Period

After all but shutting down civil litigation in mid-March 2020 (as discussed in a prior alert), Massachusetts state courts are beginning to chart a course forward for handling non-emergency civil litigation matters. For example, in the weeks after the March 17, 2020 Supreme Judicial Court (“SJC”) order closing courthouses and postponing trials (and its subsequent April 6, 2020 order extending court restrictions, deadlines, and statutes of limitations through May 4, 2020), the SJC created a Frequently Asked Questions page to provide further information about how parties and attorneys can interact with court staff while the restrictions remain in place. Subsequently, each of the individual trial courts established email addresses for submission of inquiries regarding non-emergency matters to the respective clerk’s offices. The SJC also authorized service of papers (other than complaints and summonses) by email as of right, the use of electronic signatures as of right, and the remote swearing-in of witnesses by videoconference. And both the SJC and the Appeals Court have been conducting oral argument through internet-connected video conference platforms.

Most recently, the SJC issued a new order effective May 4, 2020, that further extends many of the restrictions, deadlines, and statutes of limitations for non-emergency civil litigation. The order contemplates a phased resumption of routine civil litigation over the coming months, assuming no further extension of restrictions is necessary.

As with the prior orders, the May 4, 2020 order continues the closure of Massachusetts courts to the public—except where necessary to address emergency matters that cannot be conducted remotely—through at least June 1, 2020. But the SJC now envisions a staggered resumption of trials. Bench trials scheduled to commence before June 1, 2020 are continued to a future date unless the parties and the court agree to conduct the bench trial “virtually.” Jury trials are now postponed even further, through at least July 1, 2020.

In another example of phasing the resumption of non-emergency civil litigation—at least in a modified form—the SJC added to its May 4, 2020 order certain directives to the trial court about conducting non-emergency matters remotely. (Up to now, the Massachusetts state courts have for the most part only conducted emergency matters through remote technology during the COVID-19 pandemic.) Specifically, the various trial court departments (e.g., the Superior Court, the District Court, the Land Court, etc.) are to “identify categories of non-emergency matters that they will attempt to address virtually, in whole or in part” and to post “periodic notices” about such categories of matters to the Massachusetts state courts COVID-19 webpage.

Thus, Massachusetts state courts may soon begin conducting at least some routine civil litigation business through remote proceedings. For instance, the Superior Court has issued Standing Order 6-20—also effective May 4, 2020—which provides that “[t]he Court will address non-emergency matters in both civil and criminal cases to the extent feasible with available staffing,” with civil matters to “include processing and ruling on motions submitted under Superior Court Rule 9A, Rule 16 conferences, final pre-trial conferences, status conferences, and hearings on non-evidentiary motions.” Moreover, the scope of proceedings that are conducted remotely may evolve as the individual court departments gain more experience with the technology available.

At the same time, certain limitations still exist. For example, the audio recording system used by many trial courthouses historically does not integrate well with the telephone systems. And only three of the Superior Courts currently accept electronic filings in civil cases, such that the docketing of papers submitted by mail may continue to be delayed due to limited staff at the clerk’s offices. Nevertheless, the Superior Court Standing Order 6-20 now directs the clerk’s offices to “accept all filings received by mail and docket them as promptly as possible consistent with limited staffing” and “in counties that do not yet have efiling, [to] accept non-emergency filings by email in the discretion of the Clerk.” Although it remains to be seen how the various courts overcome such technological hurdles in practice, the SJC’s most recent COVID-19 order and the Superior Court Standing Order 6-20 make clear that doing so is a priority of the courts to get routine litigation moving forward again. Resumption of judicial proceedings such as bench trials and evidentiary hearings will follow thereafter, and eventually jury trials, as well.

In the meantime, the SJC’s May 4, 2020 order will continue a “pause” on deadlines until June 1, 2020 at the earliest. As before, the time remaining on a deadline as of March 16, 2020—the date the initial restrictions were imposed—will be added to June 1, 2020 to arrive at the new deadline, whether set by statute, court rule, standing order, or specific court order. Likewise, any deadline that would have come into being after March 16, 2020 will run from June 1, 2020 instead. So, for example, the deadline for responding to interrogatories served on April 1, 2020, will be July 16, 2020 as opposed to May 16, 2020 under Rule 33(a)(3) of the Massachusetts Rules of Civil Procedure. Likewise, any injunctions in place as of March 16, 2020 continue to run through June 1, 2020, and all statutes of limitations are tolled through June 1, 2020.

As before, future SJC orders may further extend the June 1, 2020 date (or the July 1, 2020 date for jury trials). The COVID-19 situation remains fluid, and courts will likely be facing significant backlogs once the pandemic abates. How the Massachusetts state courts choose to balance criminal and civil matters upon a full resumption of the judicial system remains to be seen. As such, clients with pending litigation matters should continue to be flexible as Massachusetts courts begin resuming non-emergency civil business.

Roger L. Smerage is a member of RIW’s Litigation Department. Roger can be reached at (617)-570-3512 or at rls@riw.com.

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This summary is presented for informational and educational purposes only, does not constitute legal advice, nor create an attorney-client relationship. For a full understanding of the issues, please contact counsel of your choice.

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