US District Chief Judge Rodney Gilstrap

Rodney Gilstrap

Out of precaution of the coronavirus (COVID-19), Chief Judge for the U.S. District Court for the Eastern District of Texas, Rodney Gilstrap, issued an order this past Tuesday, detailing how parties shall proceed to help prevent the spread of the concerning respiratory disease as they frequent the Marshall Division for court proceedings.

The unprecedented order was issued a couple of days before the spread of the virus in the state of Washington prompted its top federal judge there to shut down courtrooms in Seattle and Tacoma.

“It is the first order like this I have seen any court put out, and it’s a great template for courts and lawyers to follow,” Marshall attorney Michael Smith said of Gilstrap’s order.

Smith posted it on his Eastern District of Texas blog. The State Bar of Texas also featured it on its blog to inform attorneys.

Considering the fact that parties travel from around the globe for litigation in Gilstrap’s Marshall court, the federal standing order first instructs any attorney or party to promptly notify opposing counsel if they reasonably suspect, “while erring on the side of caution”, that a hearing, trial or disposition may cause an attorney, party, corporate representative or witness to travel to or from the United States in a manner prohibited by Presidential Proclamation, a regulation imposed by the Department of State or the Department of Health and Human Services, or any law of the United States, as it relates to travel restrictions and advisories concerning the virus.

“Mindful of the Court’s duty to ensure the ‘just, speedy, and inexpensive determination of every action and proceedings as well as its duty to protect parties, court staff, witnesses, corporate representatives, and practitioners who appear before it and the community in which it sits, it is therefore ORDERED,” said Gilstrap, who drafted the order.

The order goes on to say that parties must notify opposing counsel of any travel to or from a country subject to a Level 3 or Level 4 Travel Advisory from the Department of State due to concerns about COVID-19 in that country.

An attorney or party must also promptly notify opposing counsel of any travel or act in a manner contrary to the guidance set forth by the Centers for Disease Control or other applicable foreign or domestic health authority.

The order goes on to say they must quickly notify parties if they also come in contact with an individual who: may be infected by COVID-19, or has been in contact within the past 14 days with an individual who may be infected by COVID-19; or attend such hearing, trial, or deposition that may have exposed them to an individual infected with the virus.

“If notice is given, the parties shall promptly meet and confer regarding the appropriate means to conduct the hearing, trial, or deposition that is the subject thereof in a manner consistent with all applicable domestic and foreign regulations and health authority guidance,” Judge Gilstrap directed.

He said, in doing so, the parties shall take into consideration certain things: whether video conferencing would be appropriate and effective; whether an alternative witness, representative, attorney, or source of proof is available without conflicting with subsection (1); whether a delay in such hearing, trial, or deposition would alleviate the relevant concern, and if so, what is the least amount of delay necessary.

“Within three days of any notice given, but not later than 14 days before any hearing, trial, or deposition that is the subject thereof, the parties shall file a joint notice or joint motion that: Identifies the concern that was the subject of the notice; explains the steps the parties have agreed upon and implemented to alleviate such concern; sets forth any relief requested from the Court to address such concern; sets forth any disagreements among the parties, including alternative proposals not mutually agreed upon,” the order states.

Gilstrap said this order shall immediately apply to all cases on his docket, including cases referred to any magistrate judge, and shall remain in effect until further order.

Giving background of the outbreak, the order notes that a novel coronavirus, which causes severe acute respiratory illness, was first detected in Wuhan, Hubei Province, People’s Republic of China in December 2019. On Jan. 30, the World Health Organization declared the outbreak a public health emergency of international concern.