New York Commercial Division Proposed Rule Amendment Permitting Virtual Hearings and Bench Trials Without Full Consent, on Good Cause Shown

The New York State Office of Court Administration is seeking public comment on a proposed change to New York Commercial Division Rule 36, governing virtual evidentiary hearings and bench trials.

The proposed rule change, proffered by the Commercial Division Advisory Council (CDAC), is meant “to clarify that courts have the authority to order virtual evidentiary hearings and bench trials, upon a motion showing good cause….” The CDAC takes the position that this amendment only codifies the already existing case law, but is important “because it will ‘explicitly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, upon a showing of good cause.’”

A copy of the CDAC’s memos addressing the purposes and reasoning in promoting this rule change can be found here.

The proposed new version of the rule reads as follows:

Rule 36. Virtual Evidentiary Hearing or Non-jury Trial

(a) If the requirements of paragraph (c) of this Rule are met, 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 a non-jury trial utilizing video technology.

(b) If the requirements of paragraph (c) of this Rule are met, the court may, with the consent of the parties or upon a motion showing good cause, permit a witness or party to participate in an evidentiary hearing or a non-jury trial utilizing video technology.

(c) The video technology used must enable:

(1) a party and the party’s counsel to communicate confidentially;

(2) documents, photos, and other things that are delivered to the court to be delivered to the remote participants;

(3) interpretation for a person of limited English proficiency;

(4) a verbatim record of the trial; and

(5) public access to remote proceedings.

(d) In connection with any opposed motion contemplated by paragraphs (a) and (b) of this Rule, 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; and

(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.

(e) Remote evidentiary hearings and non-jury trials shall replicate, insofar as practical, in-person evidentiary hearings or non-jury trials and parties should endeavor to eliminate any potential for prejudice that may arise as a result of the remote format of the hearing or trial. To that end, parties are encouraged to utilize the State of New York Unified Court System’s Virtual Bench Trial Protocols and Procedures.

(f) Nothing in this Rule is intended to require any party to forgo a jury trial where a trial before a jury is demanded as provided by CPLR 4102.

Again, a copy of the CDAC’s memos addressing the purposes and reasoning in promoting this rule change can be found here.

Our thanks to business courts pioneer Robert L. Haig, of Kelley Drye, for bringing this development to our attention.