COVID-19 rewrites the employment discrimination playbook

by Sonya Goodwin

The COVID-19 pandemic has completely rewritten the playbook for U.S. companies that do their best to avoid claims of employment discrimination. Until recently, these employers had just two or three boxes that needed to be checked before they could proceed with disciplining or terminating an employee: Protected class? Protected activity? Retaliation?

Now the “gotcha” list has become like the magic beanstalk that keeps growing, and companies large and small find themselves facing claims for routine business actions that never before would have raised red flags. A record number of lawsuits filed in 2020 allege discrimination or retaliation because of COVID-related issues, and that number is expected to grow significantly in 2021.

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Litigation Update – COVID-19’s Impact on Jury Trials and Civil Court Rules

by Gregory Barchie

The recent surge in COVID-19 cases has brought jury trials in California to a standstill. As a result, the number of criminal and civil cases on the courts’ dockets continues to grow exponentially. Since criminal jury trials have priority, civil jury trials will be forced to take a back seat for the foreseeable future. Fortunately, the legal system has adapted to conducting business remotely. Appellate and trial court proceedings, settlement conferences, bench trials and even depositions are being conducted remotely on various platforms such as Zoom, Webex and BlueJeans.  Private arbitrations and mediations are also being conducted virtually. In dealing with the pandemic, California has imposed new, and some would say long overdue, changes to civil court rules and procedures. Many of these changes will stay in place even after the pandemic is over, demonstrating that COVID-19 will have had an indelible effect on civil litigation. Below is a summary of some of those recent changes.

Electronic Service

Senate Bill 1146, which was signed by Governor Newsom and took effect immediately, amended California Code of Civil Procedure § 1010.6 to require electronic service of documents on a represented party in cases initiated after January 1, 2019, so long as the serving party confirms at the outset the electronic service of address for counsel being served. There are a few exceptions to this new rule. For instance, self-represented parties are not required to accept electronic service. If a statute requires a document be served personally or by certified or registered mail, electronic service is not permitted without the express consent of the party being served. These two exceptions effectively prevent electronic service of summons on an evasive defendant.

Remote Appearance at Depositions

Existing law requires that (1) a party-deponent to appear physically at the deposition and be in the presence of the court reporter, and (2) an order be obtained upon a showing of good cause of no prejudice to the parties that a nonparty deponent (and not a party deponent) appear at a deposition by telephone. Senate Bill 1146, however, provides now that a deponent (party or nonparty) or deposing party may elect to have the court reporter attend the deposition by telephone, videoconferencing or other remote electronic means. This effectively excuses the deponent from being physically present at the deposition, even when being sworn in. Senate Bill 1146 also provides that any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court. These changes provide increased flexibility to take a deposition remotely, which would reduce travel time and provide a convenient means to take a deposition of a witness who does not live in California or even in the United States (of course, you will still be required to properly serve those witnesses).

Extensions of Time

COVID-19 has caused civil trials to be continued for nearly a year so that courts can work through the backlog created by the shutdown. Previously, a trial continuance did not continue all pre-trial deadlines unless expressly ordered by the court. However, Senate Bill 1146 amended California Code of Civil Procedure § 599 to provide temporary relief from this rule. During the current state of emergency related to COVID-19 and 180 days thereafter, a continuance of the trial will automatically continue all pre-trial deadlines, including discovery, the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions, that have not expired prior to March 19, 2020 unless otherwise ordered by a court or agreed to by the parties. The pre-trial deadlines are extended for the same length of time as the continuance of the trial date.  

If you have any questions on any of the above, please do not hesitate to contact Gregory Barchie. 

Changes to court rules and procedures during COVID-19

by Gerald Sauer

The coronavirus pandemic has changed virtually everything we know about the practice of law. Attorneys now interact with their clients via Zoom conferences rather than in person. Documents are filed remotely, not hand-delivered. Trials now include remote jury selection, video attendance, masks and social distancing. Civil matters, already substantially backlogged, have moved into the slow lane.

The article examines statutory changes enacted during and in response to the pandemic, as well as procedural changes implemented by trial and appellate courts to help keep the justice system operating during this unprecedented time.

The Article Qualifies For California MCLE Self-Study Credit

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The Nondisclosure Agreement: Time to Revamp?: Gerald Sauer’s article for Bloomberg Law

Nondisclosure agreements serve an important purpose, but the time has come to reign them in, writes Gerald Sauer, a founding partner at Sauer & Wagner LLP in Los Angeles. When drafted too broadly NDAs can cause harm to those who sign them, and may even violate laws or be unconstitutional, he says.

by Gerald Sauer

The nondisclosure agreement is as American as apple pie. Lawyers can recite Nondisclosure Agreement (NDA) terms in their sleep, and nobody would, until recently, have done anything of substance without one.

We now seem to be in NDA free fall. Ex-administration officials write tell-all books; former business partners openly talk about their experiences; and family members air dirty laundry. All of them signed nondisclosure agreements.

Read full story on Bloomberg Law

Return to Work Is a Double-Edged Sword: Sonya Goodwin’s article for The Recorder

by Sonya Goodwin

The state of California, along with the rest of the country, is reopening – in fits and starts. Those who still have jobs face the prospect of returning to unsafe workplaces. Companies still in business are trying to figure out how to stay above water financially while complying with ever-changing health and safety mandates.

Even though law firms have suffered along with the rest of the business world – many have downsized substantially during the pandemic – there is no shortage of work for employment attorneys. The list of potential actions by workers against their employers is growing to unprecedented levels. But there are strategies that can forestall the avalanche of claims.

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