Sign of the times

Paul Fletcher, BridgeTower Media Newswires

So what’s it like practicing law during a worldwide pandemic?

Courts aren’t holding trials. Hearings are conducted by Zoom or GoToMeeting. Law offices, while deemed essential businesses, aren’t really completely open. Lawyers and staff are working remotely.

Then there are clients, particularly those who are not “essential” and therefore not in their offices. What if those clients were involved in lawsuits that were already in process when the pandemic took over?

A case in federal court in the Eastern District of Virginia holds up a mirror and provides a view.

The underlying lawsuit in Vivos Acquisitions LLC v. Health Care Resource Network LLC (VLW 020-3-323) involves a business that “provides medical professional and support staff, primarily for government and military treatment facilities,” according to one of the pleadings. The two women who started HCRN, who live in Maryland, sold it to a Virginia-based company, pocketing about $4 million and taking another $4 million in promissory notes. One of the women remained president of the operation.

The dispute centers on payment of the notes and a number of other contract and tort claims. The suit was filed in December and discovery began in earnest early this year.

On March 6, the plaintiffs filed interrogatories and a request for production of documents; under the Federal Rules, responses were due in 30 days.

We all know what happened in March – everything started to fall apart. Maryland Gov. Larry Hogan declared a state of emergency on March 5. He ordered non-essential businesses closed on March 23. A stay-at-home order took effect March 30.

And, oh, yeah, those discovery responses from HCRN were due April 8.

Needless to say, the defendants missed the deadline.  Defense counsel wrote the plaintiffs’ lawyer on April 7: “We are now moving into the fourth week of our office being closed, which has disrupted our efforts to respond to your discovery requests,” according to the opinion by U.S. Magistrate Judge Theresa Carroll Buchanan.

The defendants had in the meantime filed a counterclaim and a third-party complaint (litigation like this is never simple), and the case moved forward. Kind of.

Counsel had an unproductive phone call in early May. Per Buchanan, the plaintiffs’ lawyer said the defense refused to acknowledge that the time for objections had passed and argued the discovery clock got reset with the new pleadings. The defense said the plaintiffs’ lawyer “devoted all of their time in a harangue” against the defendants.

By May 25, there were still no discovery responses. The plaintiffs’ lawyer had had enough. They filed a motion for sanctions and attorneys’ fees. They asked the court to strike the counterclaim and defendants’ affirmative defenses, and to make rulings that prohibited the company president from providing certain testimony.

They sought “the equivalent of a dismissal” of the defendants’ claims. In other words, the death penalty. For missing a discovery deadline in the middle of a pandemic.


The defendants’ lead lawyer, Stuart A. Schwager of Bethesda, Maryland, filed a lengthy response to the motions, including a timeline comparing points in the case with national and local events.

It was pretty persuasive. It was pretty long, too. As Buchanan wryly noted in her opinion, “Defendants’ opposition goes to great lengths to describe the circumstances surrounding COVID-19, of which this Court is aptly aware.”

Still, Schwager painted a compelling picture of the limitations. He and his support staff are now working remotely. The defendants’ operation is small and since the business is nonessential, even going into the office was difficult, especially to find and review requested documents.

The sanctions sought were “ludicrously disproportionate,” he said.

Buchanan  provided a “coulda, shoulda” moment for both sides, “Due to the pandemic, it has not been unusual for parties to agree to discovery extensions” and to make a joint motion, which has been routinely granted, she said.

Even without any agreement, the defense could have come to the court, motion in hand.

The judge noted the pandemic has “undoubtedly made (and will continue to make) discovery more difficult and time-consuming.” But the plaintiffs’ opposition to an extension was “unreasonable,” she said.
And she agreed the sanctions sought were “highly disproportionate” to any discovery sin committed.

The same was true for the request for attorneys’ fees, which were unwarranted “at this juncture,” the judge said.

Buchanan gave the defendants another month to get their act and their documents together, with the proviso that if they missed again, they could be subject to sanctions.

The short and skinny for the two sides: OK, we’ve all had a rough couple of months. Plaintiffs’ counsel, back off and recognize the world around you. Defense lawyers, you have a second chance. Don’t blow it.