By Katie Buehler

Law360 (November 13, 2020, 8:30 PM EST ) At least seven people involved in an Eastern District of Texas breach of contract trial have now tested positive for the coronavirus, prompting the judge to postpone the case for two weeks to allow for further testing of participants and a deep cleaning of the courthouse.

The trial is the first in which positive virus tests have been reported out of the 20 in-person jury trials held in the Eastern District of Texas since June, district clerk David O'Toole told Law360. Two jurors have tested positive along with three members of the defense team, one or more members of the plaintiff's team and one court staffer.

The trial was suspended Monday after the first juror tested positive and the court suggested everyone involved get tested as soon as possible.

"Paramount in the court's concerns are the concerns of the safety of everybody, of course, in the building as well as the parties," U.S. District Judge Amos L. Mazzant III said during a phone conference Friday morning. "And, of course, this whole situation happened despite the court taking all the protocols the court has taken."

During the call, Maria Boyce of Hogan Lovells, an attorney for plaintiff ResMan LLC, told the judge the plaintiffs are all doing well and that she has received word of only "one more" positive test on her side, according to a transcript of the call obtained by Law360. She said Dick Sayles of Bradley Arant Boult Cummings LLP, another attorney for ResMan, would not return to the trial. 

Michael Richardson of Beck Redden LLP, an attorney for defendant Karya Property Management LLC, told the judge that he, another attorney and a nonlawyer member of the defense team have all tested positive for COVID-19, but are having mild symptoms.

The phone conference was closed to reporters because of health privacy issues.

Judge Mazzant told attorneys he had tested negative for the virus. He said a court staffer tested positive but is asymptomatic. He didn't name the employee or describe the staffer's position, but did say the individual would have had contact with at least the jury and would have been "on probably all the floors of the building."

The dispute between ResMan and Karya, in which ResMan accuses Karya of giving another company unauthorized access to a property management software platform in violation of a contract, was Judge Mazzant's eighth jury trial held in Sherman, Texas, during the pandemic.

When asked if the outbreak would make the district reassess its safety protocols, O'Toole told Law360 it wouldn't necessarily change anything because the district and its judges reassess their safety protocols week-to-week as the number of COVID-19 cases in the area changes.

"We don't take anything for granted. We don't get a false sense of security," he said, referring to the number of trials the district has held. "We're just as careful now as we were in the beginning. We've been extremely proactive."

Texas is currently experiencing a second spike in COVID-19 cases, reporting more than 50,000 new cases statewide over the past seven days, according to data from the Texas Department of State Health Services. Earlier this week, Texas became the first state to surpass the 1 million cases mark.

Jury selection in the ResMan case was held Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Monday morning, according to court records. ResMan is represented by teams from Hogan Lovells, Potter Minton PC, Fish & Richardson PC and Choate Hall & Stewart LLP. Karya is represented by teams from Beck Redden and Bradley Arant.

After lunch on Monday, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with the results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

According to O'Toole, the juror who tested positive had been excused from the trial for reasons unrelated to COVID-19 after hearing several days of testimony and was last in the courthouse on Nov. 6. The juror tested positive after being excused and advised the court.

The Paul Brown U.S. Courthouse in Sherman, where the trial took place, has been closed so it can be deep-cleaned by the General Services Administration, which manages federal facilities, O'Toole said.

While many federal courts have suspended in-person jury trials due to the pandemic, the Eastern District of Texas has been holding them since June after a layoff of several months.

Judges in the Eastern District of Texas have used a variety of safety measures during the pandemic. People entering the Sherman courthouse have their temperatures checked daily, physical barriers have been set up in some parts of the courtroom, and mask-wearing and social distancing are required, O'Toole said.

Judge Mazzant told attorneys Friday that he will check in with jury members to see if they feel comfortable returning for trial Nov. 30. He also said that anyone who has tested positive would have to test negative before returning to the courthouse.

The judge said both sides will be allowed to present a 10-minute summary opening statement to the jury when the trial resumes.

ResMan is represented by Maria Wyckoff Boyce, Cristina Espinosa Rodriguez, Jillian Beck, Ira Jamshidi, S. Lee Whitesell and Jessica Ellsworth of Hogan Lovells, Michael Jones of Potter Minton PC, Tommy Jacks of Fish & Richardson PC and Daniel Winston and Greta Fails of Choate Hall & Stewart LLP.

Karya is represented by Michael Richardson and Seepan Parseghian of Beck Redden LLP and Mark Strachan, Richard Sayles and Robert Sayles of Bradley Arant Boult Cummings LLP.

The case is ResMan LLC v. Karya Property Management LLC, case number 4:19-cv-00402, in the U.S. District Court Eastern District of Texas.

--Additional reporting by Ryan Davis. Editing by Jill Coffey.

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