Shift to Remote Civil Litigation Amid the Coronavirus Outbreak
This article reviews the evolving landscape of how remote technology is being used to help achieve civil justice.
April 10, 2020 at 08:30 AM
11 minute read
Amid the coronavirus (COVID-19) pandemic, as one judge recently observed, "our courts are unleashing the creativity, adaptability, and imagination of a MASH unit in times of war to figure out how to communicate to the public, answer questions, provide necessary guidance, and resolve matters by telephone, videoconference, and email that only a few weeks ago were resolved only in person in court." And litigators are likewise quickly learning the art of remote litigation. Even after the height of this pandemic passes, these innovations may continue to be used. This article reviews the evolving landscape of how remote technology is being used to help achieve civil justice.
Emergency Hearings: Where courts determine that hearings on emergency civil applications are warranted, they are increasingly holding them remotely. For example, the Southern District of New York has indicated, as to Part I, which hears and determines certain emergency matters in civil cases, among other things, that "[i]t is anticipated that most if not all matters will be handled remotely." Beyond Part I, the court has indicated that "[i]n-court appearances will be limited strictly to Emergency Matters, and even these should be conducted by teleconference or (if the presence of witnesses is required) videoconference if possible." In New York state court, "all essential and emergency court matters—throughout New York City and in every Judicial District outside the City—will be heard virtually, with all interactions taking place by video or telephone." Delaware's Chancery Court has indicated that all hearings will be by telephone or other electronic means unless a party requests by motion that the court conduct an in-person hearing "in the event of an exigent need, e.g., the existence of a threat of imminent irreparable harm" and demonstrates "good cause for having an in-person hearing and that all other means of conducting the hearing are impracticable under the circumstances."
Oral Arguments and Conferences: While some courts have cancelled previously-scheduled oral arguments in favor of decisions on the briefs alone and continued conferences, other courts have ordered that arguments and conferences be conducted by phone or video. For example, the Second Circuit announced that "until the COVID-19 crisis passes, the court will hear all oral arguments using a teleconference platform." In the Southern District of New York, the Moynihan Courthouse, which is the District's designated "locus of activity," is not generally open to hear non-emergency matters. Civil case operations in that District are proceeding at the discretion of individual judges, who have issued guidance about remote proceedings. For example, Judge Furman requires that "[u]nless otherwise ordered by the Court, all conferences and proceedings in civil cases will be held by telephone." In New York trial courts, while non-essential court functions have been suspended, the Chief Judge announced that "the New York State Courts are working with the Bar and other justice partners to extend virtual court operations beyond the limited categories of essential and emergency matters." Delaware's Chancery Court is likewise generally conducting only remote hearings.
Depositions: Depositions are also increasingly being taken remotely, by telephone or videoconference. Courts have encouraged remote depositions due to the public health crisis. For example, Judge Cote of the Southern District of New York requires counsel to consider whether depositions "may be conducted through video conference or teleconference." In New York state court, "[t]he prosecution of pending civil matters (including discovery) in a manner that requires in-person appearances or travel, or otherwise requires actions inconsistent with prevailing health and safety directives relating to the coronavirus health emergency, is strongly discouraged." Remote depositions are consistent with Federal Rule of Civil Procedure 30(b)(4), N.Y. CPLR §3113(d), and other similar state rules that permit depositions to be taken by telephone or other remote means upon stipulation of the parties and/or court order. Even before the pandemic, in jurisdictions that do not have express statutory or rule-based authority for remote depositions, courts frequently approved of remote depositions in appropriate circumstances. Litigants seeking to oppose remote depositions in perpetuity, or until they can be taken in person, should be mindful of the potential for accusations of gamesmanship and pretext, and they should carefully make a record for why they need additional time and why they would be unfairly prejudiced if remote depositions proceed.
Trials: Jury trials are not likely to proceed, at least in the near term, due to the difficulties of selecting and hosting a jury remotely. But to the extent bench trials in civil cases proceed during this crisis, we expect remote trials to be a potential option, and, at the very least, remote examination of witnesses to be permitted. Remote trial testimony has already been permitted as a result of COVID-19. For example, in March 2020, a federal court in Minnesota completed a bench trial by taking live video testimony from remote witnesses, at our firm's request, holding that "COVID-19's unexpected nature, rapid spread, and potential risk establish good cause for remote testimony," and reasoning that the use of "[c]ontemporaneous transmission" for remote testimony was preferable over "an attempt to reschedule the trial … as postponing the trial for any length of time could merely postpone the possibility of infection at a later date, which itself might require additional delays." ResCap Liquidating Tr. v. Primary Res. Mortg., No. 13-cv-3451, 2020 WL 1280931, at *3-4 (D. Minn. March 13, 2020). Other courts have expressed a willingness to conduct trials remotely due to COVID-19. For example, the Delaware Chancery Court has ordered that all trials shall be conducted only by telephonic or other electronic means, except where the presiding judicial officer determines it is not practicable to conduct a trial in this manner, in which case it shall be continued. As with the rules governing depositions, federal and state (in New York and elsewhere) rules and precedent generally allow for remote examinations of trial witnesses in compelling circumstances.
ADR: ADR organizations, like courts, are embracing remote technology to continue providing services during the pandemic. For example, the American Arbitration Association (AAA) and its international division, the International Centre for Dispute Resolution (ICDR), announced that, although no hearings will take place in AAA-ICDR facilities until at least June 1, 2020, they otherwise remain operational to administer disputes. AAA-ICDR have reported that their alternative hearing arrangements include the use of video teleconferencing that will allow for remote participation in, and presentation of evidence at, hearings. AAA-ICDR rules permit remote options for mediations and arbitrations. Similarly, JAMS announced that it will continue to provide mediation, arbitration, and ADR services, albeit with staff working remotely, and via video conferencing technology, consistent with its rules allowing for remote proceedings.
Technologies: Turning to the mechanics of "remote" proceedings, there are a variety of platforms available for remote conferencing that can be joined from anywhere, on any device with an internet connection or cell signal, and accommodate large groups of participants, such as Zoom, Webex, and Skype. Videoconferencing platforms require a webcam and generally allow each participant to see each of the other participants on the screen.
These basic talk and video platforms can also be used for events like court hearings, oral arguments, mediations, and settlement conferences. For example, in an oral argument, the parties and court might simply dial into a telephone conference line or, if the court prefers, they could dial into a videoconference line that allows the judge and each attorney to see each other as well. In a remote mediation, the parties can use two separate videoconferencing lines, and the mediator can switch between them during the course of the day. Some ADR service providers have developed their own advanced technology, including video conferencing platforms that feature multiple virtual "rooms" for parties' private separate caucus sessions, as well as joint sessions.
Remote depositions are routinely conducted by live videoconference (rather than simply teleconference), so that the examining attorney can observe the deponent during questioning. While the videoconferencing systems discussed above can be used for remote depositions, attorneys would need to coordinate exhibit sharing and introduction independently (e.g., by email or mailing of hard copy binders), which can create logistical problems. The logistics are complicated by the fact that, from a strategic perspective, it can be unwise to provide the witness and opposing counsel access to the full set of potential exhibits prior to the deposition. A lawyer deposing a witness generally will not want the witness or opposing counsel to see key documents too early, before they are introduced at the deposition, and have extra time to review, digest, and craft responses to them.
As a solution to this problem, some vendors have created technology specifically designed for deposing remote witnesses by video. For example, TSG and Veritext have video conferencing deposition programs that can be connected through any device with a webcam and internet access, by numerous on-screen participants, and that feature on-screen electronic exhibit sharing capabilities, allowing the person taking the deposition to control when the witness and opposing counsel may access each exhibit.
In addition to using these more advanced video technologies for depositions, they can also be used for remote witness examinations at trial, as well as preparation sessions with witnesses in advance of depositions or testimony. These types of technologies could also be used to facilitate other remote proceedings with evidentiary or demonstrative components, including entire trials and arbitration hearings. We will be monitoring how effective remote technology is for full-scale hearings involving multiple participants.
Pros and Cons: Beyond for the need for remote technologies and their mechanics, there is the question of the pros and cons of their use. Most obviously, in the context of this pandemic, remote litigation may be the only way to move cases forward in the near term, so long as the risk of infection persists and public health restrictions remain in place. The tools discussed above make it possible to conduct conferences with the court, argue motions, examine witnesses, mediate disputes, and try cases without face-to-face contact, work outside the home, or travel. In addition, remote litigation can create time and cost efficiencies. For example, remote depositions eliminate the need for lawyers to fly across the country to witnesses, with boxes of hard-copy exhibits in tow.
Remote litigation does, of course, have shortcomings. As a practical matter, remote litigation relies on technology, which, of course, does not always work reliably. For example, poor internet connections or cell signals can make it difficult to hear participants or cause delays in video/audio. The more complicated the proceeding at issue and the more participants involved, the more likely there are to be technological issues. Remote litigation also presents confidentiality and information security issues, as shown by recent reports of "Zoombombing" and hijacking of teleconferences by uninvited attendees.
As a strategic matter, using remote technology can make it more challenging for a litigator to command attention, communicate effectively, read the room, and perceive non-verbal cues of the court, adversary, or witness. Because so much of a litigator's craft turns on her ability to communicate effectively and persuasively, the push toward remote proceedings is a significant game changer to which those in the field must quickly adapt. Courts have observed that virtual reality is rarely a substitute for actual presence, and even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it. Teleconferencing in particular restricts a litigator's means of communicating to voice, and may make an argument, no matter how impassioned, less impactful.
In terms of working with witnesses, a lawyer taking a deposition or examination remotely will lose some of the control she otherwise would have sitting across from the witness. Remote examination may also make it harder to effectively confront an evasive witness. In an examination by phone, important cues, from body language, to outside influence on the witness, may be difficult for the examining attorney to perceive. Even in the case of examination by video, courts have observed, that certain features of testimony useful to evaluating credibility and persuasiveness, such as the immediacy of a living person, can be lost with video technology, and the ability to observe demeanor may be lessened. That said, today's technology minimizes these concerns to a degree; in particular, as one court recently observed, the near-instantaneous transmission of video testimony permits the fact finder to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.
In terms of ADR, many advocates believe that mediations and settlement conferences work best when all of the parties get together in a room and are empowered to make decisions during in-person negotiations. Again, videoconferencing can play an important role in making these negotiations as efficient as possible from afar.
Andrew Rossman, Christopher Kercher and Sanford Weisburst are partners, and Kimberly Carson and Owen Roberts are associates, at Quinn Emanuel Urquhart & Sullivan.
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