With courts across the United States in different and various stages of re-opening to get back to some level of normalcy under the exigent circumstances created by the global coronavirus pandemic, I thought it would be helpful to my clients, co-counsel, and others outside of Delaware to provide an update on the Courts’ operations in Delaware (both federal and state courts) and re-opening plans as of May 30, 2020.

Federal Courthouse in Delaware

With respect to the federal courthouse in Delaware, which includes the United States District Court for the District of Delaware (D.Del.), the courthouse closed on May 29, 2020 until further notice due to a water leak affecting operation of the building. I suspect the water leak will be resolved and the courthouse will re-open and resume its operations under the exigent circumstances created by COVID-19, as set forth in the most recent Standing Order on court operations entered by Chief Judge Stark on May 27, 2020.

Some highlights of the matters set forth in the Court’s Revised Standing Order include the following:

▪ All civil and criminal jury selections and jury trials in D.Del. scheduled to begin before June 30, 2020 are continued pending further Order of the Court and will be reset by further Order of the assigned Judge.

▪ All deadlines set by the federal or local rules or by Court Order, including, but not limited to, scheduling orders in civil or criminal cases, remain in effect unless and/or until modified by further Order of the Court or the assigned Judge.

▪ Individual judges may schedule and hold in courtroom hearings, conferences, sentencings, change of plea hearings, and bench trials in the exercise of sound discretion consistent with the principles of the Court’s Standing Order(s) on COVID-19 and the sound administration of justice.

▪ All judges are encouraged to continue to conduct proceedings, including ADR proceedings, by telephone or videoconferencing where practicable and as permitted by law, and to take reasonable measures to avoid the necessity of out-of-town travel of litigants, witnesses, counsel or the public.

The wearing of face masks is required by all (including attorneys and Court employees) when interacting with Court staff and in the common or public areas of the Court facilities.

A copy of the Revised Standing Order of the D.Del. as of May 27, 2020 is attached.

State Courthouses in Delaware

Led by Chief Justice Seitz, the Delaware State Courts presented a summary of the interim report of the State Courts Reopening Committee on May 29, 2020. The report describes the various phases of the re-opening plan of the Delaware State Courts.

Phase 1 will start on June 8, 2020. Phase 1 will include no more than 25% of court staff, allow access by attorneys, bail bonds persons, private individuals posting bail, data miners, and the media, and the restart of some oral arguments, conferences and civil hearings that only involve judges and attorneys. The Courthouses will still be closed to the public during Phase 1 and a capacity limit of no more than 10 persons in any courtroom.

There are several requirements that will start with Phase 1 and continue until further Order by the Courts when entering the Courthouses: (1) wearing of face masks; (2) 6 feet social distancing; (3) answering COVID-19 screening questions;  (4) temperature scans; and (5) using hand sanitizer upon entering the buildings.

Phase 2 is scheduled to begin on June 15, 2020. Phase 2 is designed to reopen the Courthouses to the public, while at the same time, maintaining the entrance and screening requirements, 6 feet social distancing requirements, and capacity limit of no more than 10 persons in any courtroom at a time. Court staff will be increased to no more than 50% during Phase 2. Phase 2 will, among other things, include the resumption of bench trials in civil and criminal cases. No jury trials during Phase 2.

Jury trials in civil and criminal matters will resume during Phase 3. Staffing will be increased to 75% and the courtroom capacity limit will be increased to 50 persons during Phase 3. There is no date scheduled at this time for the start of Phase 3. The start of Phase 3 will depend on how things go in Phases 1 and 2. The Courts (in coordination with the medical community) will be monitoring whether there is any resurgence in the increase in the spread of the coronavirus during Phases 1 and 2 and how the procedures implemented during the prior phases are working before proceeding to Phase 3.

Phase 4 is the return of all proceedings to the courthouse in the new normal. There is no date scheduled at this time for the start of Phase 4. The start of Phase 4 will depend on how things go in Phase 3.

A copy of the Interim Report of Delaware State Courts Reopening Committee is attached.

A general principle that is clear at this time in both federal and state courts in Delaware is that the increased use of technology to conduct virtual hearings, conferences and meetings, where allowed under the law, is here to stay. Judges, attorneys, clients, parties, witnesses, and others involved in the legal process will continue to adjust and adapt to the “new normal” over time.

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