Courts have already made numerous accommodations to trial participants in an attempt to keep the justice system operational and functional in light of the challenges of the pandemic.
The COVID-19 pandemic has significantly impacted the operation of courts and justice systems worldwide. Courts have adapted to the ever-changing situation by providing appropriate accommodations―such as virtual hearings and having witnesses testify remotely to safeguard the health and safety of all those involved―while attempting to both deliver justice where appropriate and clear the judicial backlog that has further increased due to the pandemic.
However, the pandemic is turning a corner with the Food and Drug Administration’s emergency use authorization of three COVID-19 vaccines. Millions of Americans have already received at least one dose of the vaccines that require two doses for maximum protection and many more will receive their vaccinations as eligibility for vaccination expands and the country strives toward a return to normalcy, which includes conducting in-person jury trials in the courts.
A recent order from a pending patent infringement case, Maxell Ltd. v. Apple Inc., 5:19-cv-00036-RWS (E.D. Tex. Mar. 15, 2021), demonstrates an attempt to return to normalcy from the pandemic, but may also hint that some elements of the pandemic, namely virtual testimony, may become a permanent fixture within the legal profession that is relatively slow to adapt to change.
Originally seeking a stay pending resolution of review proceedings at the USPTO, which the court denied, Apple then moved to continue the trial date to permit trial participants to receive the COVID-19 vaccine because the pandemic poses a risk to trial participants and would prejudice Apple’s right to a full and fair trial. Maxell responded that the parties are prepared to safely conduct the trial and that there are numerous precautions in place to ensure the safety and well-being of participants. Maxell further noted that this is the first time that Apple has raised a COVID-19 safety issue and that COVID-19 risks were greater during the period of the original trial date.
The court denied Apple’s motion to continue the trial date. First, the court indicated that the district abides by recommendations issued by the Centers for Disease Control and Prevention and has numerous precautions in place to ensure a full and fair trial while maintaining the health and safety of participants. Second, continuance of the case would further prejudice Maxell’s right to timely enforce its patent rights because there is no assurance that the pandemic will have subsided and whether the court’s schedule can accommodate a rescheduled trial date. The court also determined there would be no disproportionate impact to either side during trial if expert and fact witnesses are unable to testify in person and must do so remotely.
This order from Maxell Ltd. v. Apple Inc. is one example of how trial participants may seek to gain a tactical advantage from the COVID-19 vaccine rollout and the broadening eligibility of vaccine recipients under the guise of ensuring the health and well-being of trial participants. However, courts that have resumed in-person operations may not be so keen on granting a stay in light of vaccination of trial participants, which may be seen as an attempt to seek a tactical delay and advantage. Courts have already made numerous accommodations to trial participants in an attempt to keep the justice system operational and functional in light of the challenges of the pandemic. The legal profession, which tends to resist change, may be hesitant to change once again or, in other words, revert to pre-pandemic procedures given the relative convenience of virtual testimony despite any underlying technical difficulties.
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