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New Commercial Division Rule on Virtual Evidentiary Hearings and Trials

On October 19, 2021, Chief Administrative Judge Marks announced the new Commercial Division Rule 36, Virtual Evidentiary Hearing or Non-Jury Trial, effective December 13, 2021.[1]  Rule 36 gives Commercial Division Courts the option to hold evidentiary hearings and non-jury trials by video conference if the video conference technology enables all of the following:

  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.

Rule 36 only applies when all parties consent and explicitly “does not address the issue of when all parties do not consent.”

This new Rule 36 is substantially identical to the text proposed by the Commercial Division Advisory Council in a memorandum from June 2, 2020.[2]  In the memorandum, the Advisory Council noted that video conferencing provides “an efficient, cost-effective, and satisfactory alternative to many court proceedings” by eliminating the time and costs associated with travel to and from scheduled court proceedings—as well as costs due to unexpected adjournments and continuances.  The Advisory Council also observed that “many of the law firms that regularly appear in the Commercial Division and their clients already use videoconferencing in their everyday business operations, making the Commercial Division the logical place to expand videoconferencing technology to the New York State courts.”

The Rule does not mention specific types of videoconferencing technology, with the Advisory Council reasoning that “technology changes so rapidly that a rule incorporating specific types of technology may become obsolete within a few months.”  In fact, at the time that the memorandum was published, the New York court system used Skype; only three months after the publication, the court system announced a switch to Microsoft Teams.[3]

Finally, while this Rule was proposed and promulgated during the COVID-19 pandemic, the Advisory Council noted that it “is not intended as a temporary or interim measure to deal only with current constraints. . . caused by the pandemic.  Instead, this proposal is designed to increase the efficiency and productivity of future court operations and also thereby benefit the public in general and the bar.”[4]

[1] Administrative Order 299/21, N.Y.S. Unified Court Sys. (Oct. 19,2021), https://www.nycomdiv.com/wp-content/uploads/sites/381/2021/10/AO-299.pdf.

[2] The only substantive addition was an explicit disclaimer that the rule did not cover situations where all of the parties do not consent.  See Request for Public Comment on a Proposed New Commercial Division Rule to Allow Virtual Evidentiary Hearings and Non-Jury Trials on Consent, N.Y.S. Unified Court Sys. (Oct. 22, 2020), https://www.nycourts.gov/LegacyPDFS/rules/comments/PDF/Request%20for%20Public%20Comment%20-%20virtual%20trials.pdf.

[3] See Brandon Vogel, NY Courts Are Moving to Microsoft Teams; Here’s What You Need To Know, New York State Bar Ass’n (Sept. 21, 2020), https://nysba.org/ny-courts-are-moving-to-microsoft-teams-heres-what-you-need-to-know/

[4] Request for Public Comment on a Proposed New Commercial Division Rule to Allow Virtual Evidentiary Hearings and Non-Jury Trials on Consent, N.Y.S. Unified Court Sys. (Oct. 22, 2020), https://www.nycourts.gov/LegacyPDFS/rules/comments/PDF/Request%20for%20Public%20Comment%20-%20virtual%20trials.pdf.