University of Denver

Initial Discovery Protocols

for Business Interruption Insurance Disputes Arising from the COVID-19 Pandemic and Similar Public Health Threats
Senior Director
Manager

These Initial Discovery Protocols for Business Interruption Insurance Disputes Arising from the COVID-19 Pandemic and Similar Public Health Threats (Pandemic Protocols) provide a new pretrial procedure that aims to reduce conflict and cost and to help businesses and insurers reach quick resolution during the pandemic, whether it be in settlement, motions practice, or trial.

While COVID-19 swept across the world in 2020, it also significantly impacted businesses, resulting in many businesses turning to their insurance companies to cover lost income and other pandemic-related losses. The extent to which their policies provide coverage—be it under business insurance interruption or civil authority clauses—is a question that will ultimately be resolved by the courts. And for the increasing numbers of businesses and insurers who end up in court to resolve coverage disputes, the process may be protracted and complex. These Pandemic Protocols are designed to ease that burden and can be implemented by trial judges, lawyers, and litigants in state and federal courts. The intent of the protocols is to “make it easier and faster for the parties and their counsel to: (1) exchange important information and documents early in the case; (2) frame the issues to be resolved; (3) value the claims for possible early resolution; and (4) plan for more efficient and targeted subsequent formal discovery, if needed.”

Courts and litigants around the country will be dealing with COVID-19 insurance issues long after the pandemic has run its course. However, these Protocols can provide courts with an effective tool to streamline the critical early stage of litigation in order to reduce conflict and cost for both businesses and insurers alike.

These are the fourth Initial Discovery Protocols that IAALS has facilitated. The first set of protocols, the Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Employment Protocols), was published as a pilot project by the FJC in November 2011. Following the successes of the Employment Protocols, IAALS facilitated a second set of Initial Discovery Protocols, in this instance for Fair Labor Standards Act Cases Not Pleaded as Collective Actions (FLSA Protocols). And in 2019, IAALS facilitated a third set of Initial Discovery Protocols for First-Party Insurance Property Damage Cases Arising from Disasters (Disaster Protocols).