It is no secret by now that remote proceedings are here to stay. Driven at first by the safety protocols related to the COVID-19 pandemic, remote proceedings have outlived those protocols, and they remain the preferred forum for many parties and Justices. The recent pages of this blog are filled with caselaw and proposed rule changes underscoring the reality that virtual proceedings will remain an integral part of the practice of law for the foreseeable future (see this post regarding Commercial Division Rule 1 and requests to appear remotely, or this post concerning remote depositions).
On September 23, 2022, the Office of Court Administration sought public comment on a proposal by the Commercial Division Advisory Council (“CADC”) to amend Commercial Division Rule 36 to expressly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, upon a finding of good cause.
Rule 36, titled: Virtual Evidentiary Hearing or Non-jury Trial, currently provides that, if there is appropriate videoconferencing technology, the court “may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.” The proposed amendment would clarify that the court may “with the consent of the parties, or upon a motion showing good cause, or upon the court’s own motion, conduct an evidentiary hearing or non-jury trial utilizing video technology.”
This proposed change follows a similar change to Commercial Division Rule 37. As discussed in this post, new Commercial Division Rule 37 provides that the courts may “upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means.” If the court can order that depositions can be remote, why can’t it order the same for evidentiary hearings and bench trials?
The CDAC notes that the proposed amendment simply clarifies the authority that the courts already have. Relying mostly on Judiciary law § 2-b(3), which empowers courts with the authority to “devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it,” several courts have concluded that even without amendment to the Commercial Division Rules, courts have the authority to order remote proceedings over the objection of a party (see, e.g., Quattro Parent LLC v Rakib, 2022 N.Y. Slip Op. 30190[U], 3 [NY Sup Ct, NY Co 2022] [Masley, J.]; Wyona Apartments LLC v Ramirez, 70 Misc 3d 591 [Civ Ct, Kings Co 2020]).
The more interesting portion of the proposal lies in the CADC’s proposed addition of subsection (d), which provides:
In connection with any opposed motion [to proceed with a virtual hearing or non-jury trial], the Court shall determine the existence of “good cause” by considering at least the following factors:
(1) the overall efficiency of conducting a virtual proceeding, including but not limited to consideration of the convenience to all parties involved, the time and costs of travel by counsel, litigants, and witnesses to the location of the trial or hearing, and avoiding undue delay in case management and resolution;
(2) the safety of the parties, counsel, and the witnesses, including whether counsel, the litigants, and the witnesses may safely convene in one location for the trial or hearing; and
(3) Prejudice to the parties.
Enumerating these factors in Rule 36, the CADC reasons, “will allow the Commercial Division to increase efficiency and to reduce unnecessary litigation.”
These factors seem to favor remote proceedings. Courts have already held that virtual proceedings do not prejudice a party (see A.S. v N.S., 68 Misc 3d 767, 768 [Sup Ct, NY Co 2020]), so factor (3) is a non-factor in all but exceptional circumstances. And it is difficult to imagine a circumstance where factor (1) or (2) would counsel in favor of an in-person hearing; remote proceedings will always entail less travel time and costs and greater “safety.” If courts cabin their consideration to the factors proposed by the CDAC, we will see a lot more virtual proceedings.
The proposed rule also permits courts to consider other factors. Depending on the circumstances, the security of the proceedings and risk of unauthorized electronic access, the risk that a witness may get off-camera coaching during their testimony, and the effective presentation of evidence (particularly non-documentary evidence) might all weigh into the Court’s analysis.
Comments to the proposal are due by November 23, 2022, by email to email@example.com. In the meantime, counsel should keep their video-cameras and Zoom-suits handy.