Who Needs to Know
General Counsel, Litigation Experts and Consultants, Litigation Practitioners.

Why It Matters
As the COVID-19 pandemic drags on, courts are becoming increasingly willing to conduct trials in which the witnesses testify through videoconference. This article describes such a trial.

On August 6, the U.S. District Court for the Middle District of North Carolina (M.D.N.C.) completed a five-day bench trial that was conducted entirely by videoconference. The trial arose from a contract dispute, and was the first fully remote trial in the M.D.N.C. and one of the first in the Fourth Circuit. We represented the plaintiff, a medical device manufacturer, which alleged that the defendant consulting firm had breached a contract by refusing to refund certain fees. Because the contract contained a jury waiver, the trial was scheduled as a bench trial.

Shortly before the trial was set to begin, the defendant filed a motion for a continuance, asking the court to postpone the trial in light of recent coronavirus-related travel requirements that restricted several of its witnesses from traveling from Canada to North Carolina. The court denied the motion, expressing concern about the backlog of cases resulting from the pandemic, and decided to go forward with the trial at the scheduled time through its videoconferencing technology. In reaching this decision, the court relied upon Rule 43(a) of the Federal Rules of Civil Procedure, which allows courts to receive testimony by contemporaneous transmission from different locations for good cause in compelling circumstances, so long as appropriate safeguards are in place.

In advance of the trial, the court established various procedures that were designed to safeguard the rights of the parties to a fair trial. These procedures are likely to be used in future remote trials. 

First, the court determined that all of the parties and their witnesses were required to participate virtually. Although some of the plaintiff’s witnesses lived within driving distance of the courthouse and could have appeared without jeopardizing their health or safety, the court decided that the trial would raise fairness concerns if plaintiff’s witnesses attended in person, while the defendant’s witnesses were forced to appear remotely. Despite these requirements, the courtroom remained open with video monitors facing the gallery to allow members of the public to observe the trial proceedings. 

Second, the court ruled that the parties’ attorneys also needed to participate virtually, so that only the judge, essential court personnel, and interested members of the public would be physically present in the courtroom. The court made this ruling based upon the limitations of the videoconferencing technology, rather than on fairness principles or safety concerns. For videoconferencing, the court uses Zoom, which requires participants to be in front of a computer screen so that they can see and hear others, and be seen and heard by others. The court was concerned about technological issues (e.g., feedback) and other disruptions that could arise with multiple attorneys and the judge simultaneously videoconferencing from the same room.

Third, the court required the parties to provide the witnesses with notebooks containing the universe of exhibits and demonstratives in advance of their trial testimony. Although witnesses could be shown and questioned about documents that were displayed on the computer screen during the videoconference, the court wanted each witness to possess hard copies in the event the witness wanted to review a document or had difficulty viewing a document on their monitor.

Fourth, the court retained the ability to create virtual “breakout rooms” in the videoconference platform that allowed for private communications. At one point during the trial, the plaintiff objected to one of the defendant’s questions on the ground that it sought information protected by the attorney-client privilege. Although the court sustained the objection, the court wanted to preserve the answer. Using the videoconference platform, the court transferred plaintiff’s counsel, the witness and the court reporter into a “breakout room," where the court reporter transcribed the witness’ answer outside the presence of the judge, defense counsel and all other videoconference participants. By doing so, the court created a sealed record of the answer that can be reviewed on appeal if necessary. 

Finally, the court provided breaks after witnesses completed their testimony so that each party had sufficient time to contact its next witness and get him or her prepared to testify via videoconference. In many respects, this procedure significantly simplified the trial. If the trial had been held in person, most of the witnesses would have had to fly to the courthouse, stay overnight in a hotel, sit in the hallway until they were called to the stand, and miss time from their job. Because the trial was conducted via videoconference, most of the witnesses were able to work up until the time of their testimony, and when they were eventually called, simply walked over to a conference room in their workplace that had been equipped with a computer and monitor. This process saved the parties a significant amount of time and expense.

As the COVID-19 pandemic continues, more judges are likely to experiment with using videoconferencing for trials. Nonetheless, the widespread adoption of fully remote trials remains uncertain. Most trials require juries, and judges may be reluctant to conduct jury trials through videoconferences due to the limitations on their ability to oversee the jurors and ensure they are properly discharging their duties.