CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Coronavirus – Construction & Design Professional’ Category

Ready Camera One: Remote Litigation in the Era of Social Distancing

Posted on: April 7th, 2020

By: Jennifer Adair, Jennifer Markowski and Andy Treese

Evaluating claims to move them towards resolution or trial is the lifeblood of a defense practice. This typically requires direct interaction with a plaintiff and key witnesses, either at deposition (to hear their testimony, to form impressions of how they will be received by a jury), at mediation (to assure the plaintiff personally understands the strengths and weaknesses of the case), or at trial.  In person interaction is simply not as practical as it used to be and, in some places, it might be illegal.  It is not surprising that we have been fielding inquiries from claims professionals and their insureds about whether we can continue to move their cases forward by conducting discovery and settling claims in an age of social distancing. 

The answer is yes.  At Freeman Mathis & Gary our attorneys routinely take depositions remotely and have had great success with remote mediation.  Both, however, carry their own practical considerations.

  • Depositions.  Remote depositions have been around for well over a decade, but the increased demand is changing the marketplace.  Many lawyers who have never used or have avoided remote deposition technology no longer have a practical choice.  Some are adapting more quickly than others:  we have seen some opposing counsel take clean, effective depositions by video, but we have also seen opposing counsel take depositions that were not effective due to lack of familiarity with the technology and/or a misunderstanding of the different methodologies necessary to prepare for a remote deposition.  Counsel should consider several factors when preparing for and conducting an online deposition: 
    • Is this a deposition you are willing to take remotely?  Minor witnesses, some experts, or witnesses in cases with low exposure can probably be deposed remotely without concern.  Depending on the facts and exposure associated with the case, there may be some witnesses you may simply want to depose in person, even if it delays the case for 45-60 days. 
    • Prepare for your deposition at least two days early.  Identify the exhibits you are certain to use at the deposition and assure they can be presented cleanly to the witness.   For those that are obvious (complaint, incident report, interrogatory responses, etc.) consider having them pre-marked and distributed by email to opposing counsel, the witness and court reporter to speed the deposition along.  Also, identify documents you may want to use (medical records, photographs, etc.) and have those available and ready to present during the deposition. These can be circulated by email and shown to the participants using the screen sharing function of most videoconferencing technology.
    • Understand the technology. What program will be used? How will exhibits be presented?  Have you tested the video conferencing software or any other technology you need to use during the deposition?  How does the audio system work (i.e. can more than one person speak at a time or would an objection by counsel also inadvertently mute the witness’ microphone)?
    • Consider the logistics of the oath.  Who will place the witness under oath and where will they be?  Does your state permit oaths to be administered remotely?  Consider making a formal stipulation on the record that, due to the pandemic, the parties agree to the sufficiency of an oath administered remotely.
    • Decide how objections will be handled.  If it suits your purpose strategically, you and opposing counsel may choose to reserve some objections that would typically be made on the record.
    • Understand the cost and the final product.  How much is the vendor charging for this deposition as opposed to a standard deposition?  Are they generating a traditional transcript or is the deposition also being recorded?
    • Make a plan for confidentiality. If the witness is your client, plan in advance how you will communicate (by email, texting, etc.) during the course of the deposition to avoid inadvertent disclosures. Make sure you know how to turn off your camera and microphone or, better yet, go into another room to converse with your client.
    • Expect the deposition to take longer than usual. Don’t allow logistical limitations to curtail zealous representation.
  • Mediations.  Mediation and other forms of ADR are effective because a knowledgeable, competent mediator can provide litigants and their counsel on both sides a “reality check” as to the strengths and weaknesses of their cases.  The process works better when the mediator can speak directly to the parties and for that reason, our instinct in the past has been to require personal attendance at mediation.  So far, however, we have found remote mediation to make sense for several reasons:
    • Remote mediation is generally effective.   Some cases simply don’t settle until a mediator twists a metaphorical arm or two.   Is that effective when the literal arms aren’t in the same room as the mediator?   So far, anyway, the answer seems to be yes – when the technology works.  Where that is the case, mediators can still engage in private caucuses and have the ability to review or share exhibits, documents, etc. as needed.   We can envision specific cases where a video mediation might not be appropriate but so far, remote mediation has been getting cases resolved.
    • Remote mediations keep cases moving.  Governmental orders aside, many of our adjusters and risk managers have been restricted by their employers from non-essential travel for the foreseeable future.  Remote mediation presents a cost-effective opportunity to resolve cases now.
    • Remote mediation is cost effective (for now).  Most of our vendors are currently providing remote mediation services at no extra charge.  Remember, mediation centers are a business, too, and have a vested interest in keeping their dockets full by providing the technology and know-how to make mediation convenient to the parties, via Zoom or similar systems. 
    • Litigants may have a greater motivation to settle their claims when faced with the reality that jury trials for civil cases seem unlikely to take place for at least several months after state and local judicial emergencies resolve.
    • Attorneys want to keep cases moving, too. Counsel may view remote mediation as a step that can be taken towards trial.  Most courts already require ADR / mediation before trial.  Others are likely to being imposing that requirement to control their post-coronavirus dockets. 
    • Understand privacy issues related to the technology. Media reports suggest that Zoom and potentially other platforms are at risk for security issues.  Make sure the mediator provides a password for participants to gain access, and that meetings are locked so that nobody can join without the moderator’s permission. Ensure that the mediator has disabled the recording function, and that chat is not archived. Ask your mediator to send instructions in advance so that you are comfortable with the measures being taken, and can request any additional protections you deem appropriate.

At Freeman Mathis & Gary, our team will continue to monitor and report on the use of emerging technologies to litigate claims and obtain favorable outcomes for our clients.

Additional information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Pennsylvania Orders Halt to Construction Projects Other than Emergency Repairs and the Construction of Health Care Facilities

Posted on: April 2nd, 2020

By: Sean Riley

Governor Tom Wolf has issued an executive order closing all businesses in Pennsylvania that are not deemed to be “life-sustaining.” Residential and non-residential building construction, as well as utility subsystem, road and bridge construction are all specifically listed as businesses that must immediately cease physical operations. However, “emergency repairs” and “construction of healthcare facilities” are permitted to continue. Businesses that are part of the supply chain or are otherwise necessary to support life-sustaining business may apply for a waiver but must do so on or before the April 3, 2020 deadline. Businesses should consult with legal counsel to determine whether such a waiver is appropriate.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Massachusetts Sees Tensions Between Municipal Construction Bans and Governor’s “Essential Services” Order

Posted on: April 1st, 2020

By: Catherine A. Bednar, Esq.

On March 17, 2020, Boston became the first city to issue a moratorium on construction projects as an emergency measure to slow the spread of COVID-19. Boston’s order includes exceptions for emergency and essential work, such as emergency utility work and construction needed to support public health facilities, maintain reliability of the transportation network, and keep residential buildings habitable. Following Boston’s ban, Nantucket, Cambridge, and Somerville and other local governments issued similar orders which, like Boston, include exceptions for emergency work and certain projects.

On March 23, Governor Baker issued an Order “Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People”. The order sought to close a broad range of public facilities, workplaces and establishments while maintaining critical services and functions.  In particular, the Order identified two categories of construction industry workers as “essential” who may continue to work, which encompassed a significantly broader swath of workers than the exceptions set forth in the municipal bans, including workers and vendors involved in the construction of “critical or strategic infrastructure” and construction workers on all construction sites and construction projects including housing construction. 

Two days later on March 25, as municipalities continued to issue orders restricting construction work, the Governor’s Legal Office issued a letter invoking Section 8A of the Massachusetts Civil Defense Act, which mandates that any local government order “shall be inoperative” to the extent it is inconsistent with an order issued by the Governor during the period of the emergency. The letter, which called on municipalities to withdraw any directives that are inconsistent with the Governors’ Order, was met with resistance.

On March 27, 2020, Somerville’s mayor issued a statement that “due to Somerville’s dense urban environment” and in order to protect workers and the community, the City’s construction suspension will remain in full force.  Likewise, Boston’s mayor affirmed the city’s construction ban would be extended. The islands of Nantucket and Martha’s Vineyard petitioned the Governor’s office seeking an exemption.

During a press conference on March 26, Governor Baker expressed a level of tolerance for those municipalities issuing construction bans.  Baker noted that the state’s COVID-19 guidelines for ensuring safety on job sites provides for oversight and enforcement to be performed at the municipal level.  Baker explained, “Boston and several other municipalities have said — and it’s a fair point — that they don’t believe that they’re in position at this point to do the work that would be associated with ensuring that those guidelines are being adhered to on the ground with all the projects that are either underway or planned.” Boston Mayor Marty Walsh also indicated the City was working with the construction industry to “determine protocols that would allow these sites to safely re-open in Boston.”  Similarly, officials from Martha’s Vineyard and Nantucket held a weekend conference call with the Governor’s office to work on resolving the issue. On Monday, March 30, the Town of Edgartown posted on its website that “The Governor’s representatives stated that the local boards of health retain the power to ban construction if warranted by local considerations”, such as the local hospital capacity.

Whether the Governor takes future action to compel municipalities to withdraw their local orders or instead continues to give cities and towns latitude, will likely depend on the scope, duration and impact of the current local measures going forward.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

UPDATE: City of Atlanta’s COVID-19 Shut-Down Order Revised to Allow All Construction to Proceed

Posted on: March 25th, 2020

By: Jake Carroll

The Associated General Contractors of Georgia, Inc. reports that a corrected executive order has been issued by The Office of Mayor Keisha Lance Bottoms designating all construction as “Essential Infrastructure.” The original executive order limited “Essential Infrastructure” to public works construction projects . The revision allows all construction projects to move forward within the jurisdictional limits of the City of Atlanta.

 Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

 

City of Atlanta’s COVID-19 Shut-Down Order Impacts Certain Construction Projects

Posted on: March 24th, 2020

By: Jake Carroll

Executive Order Number 2020-21 (“Shut-Down Order”) was issued by Kiesha Lance Bottoms, the Mayor of Atlanta, on March 23, 2020 at 8:49PM. Atlanta’s Shut-Down Order is more restrictive than similar orders seen in Florida (with broader exceptions for construction) and  California (allowed some construction to proceed).

Key Terms:

  • Jurisdiction: Order only applies to projects within the jurisdictional limits of Atlanta.
  • Date and Time of Effect: March 24, 2020 at Midnight.

Impact on Construction Projects: shutters construction projects that are not deemed “Essential Infrastructure” or “Essential Business” as defined by or enumerated in the Order.

  • Essential Infrastructure” is limited to projects for public works construction, airport operations, public transportation, utilities, and telecommunications, etc.  It generally does not capture more commercial construction, like warehousing or housing.
  • Essential Businesses” provides additional categories related to construction, including:
    • Healthcare operations and infrastructure;
    • Businesses that provide shelter for economically disadvantaged individuals (affordable housing projects may qualify);
    • Educational facilities; and
    • Residential facilities and shelters for seniors, adults or children.
  • General commercial construction projects like hotels, apartments and warehouses likely do not qualify.

Further Considerations:

  • Construction Industry Stakeholders should review FMG’s COVID-19: Commons Issues in Construction Contracts
  • Contractors should evaluate all existing construction contracts within the City’s jurisdiction, to determine what their rights and obligations are, including notice requirements.
  • Developers should evaluate whether they have any recourse under existing insurance policies, including business interruption and builder’s risk. Typically these policies are not implicated absent direct physical damage to property, but the results depend on the specifics of each policy.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**