In yet another recent amendment to the New York Commercial Division Rules, on October 19, 2021, Chief Administrative Judge Lawrence K. Marks ordered the implementation of new Commercial Division Rule 36, permitting virtual evidentiary hearings and non-jury trials on consent. The new rule takes effect on December 13, 2021. A copy of Judge Marks’ Order, including the new rule’s text, can be found here.
As stated, all parties must consent, but it remains within the court’s discretion as to whether a virtual evidentiary hearing or non-jury trial will be permitted. Rule 36 further sets out the video technology requirements necessary to consider conducting a virtual evidentiary hearing or non-jury trial.
As with all of the recent developments in the Commercial Division Rules, the Commercial Division Advisory Council (CDAC) played a key role. The CDAC’s 23 page June 20, 2020 memorandum, advocating the use of virtual evidentiary hearings and non-jury trials on consent, can be found here.
The value of using these technologies is amplified during the COVID-19 pandemic, but the CDAC had been advocating use of remote technologies in court proceedings even prior to the pandemic.
Per the June 2020 memo, as early as June 2019, the CDAC proposed amending the Commercial Division Rules “to facilitate participation of counsel in court conferences and oral arguments of motions from remote locations through use of videoconferencing or other technologies.” And in July 2020, a new rule was adopted permitting remote court conferences and oral argument, per these CDAC recommendations originally made in June 2019. Blog posts on this amendment can be found here and here.
Rule 36 presents the next phase in the use of such technologies, where appropriate, to advance the administration of justice.
Our thanks to business courts pioneer Robert Haig, of Kelly Drye, for bringing this development to our attention.