The U.S. District Court E.D. New York dealt with a request for a virtual bench trial in a voting rights act case.

The court granted the request for the virtual bench trial and stated:

In terms of good cause, plaintiffs argue that “COVID-19 creates perhaps the most compelling circumstances in history in favor of conducting this trial remotely.” DE 188 at 1. Given the unprecedented nature of the circumstances faced by our society at present, it is difficult to characterize this statement as hyperbole. And while several district courts have looked at this issue, the carefully considered decision of my colleague, Judge Chen, determining whether COVID-19 restrictions satisfy the criteria for virtual proceedings under Rule 43(a) proves compelling:

The courthouse in this district has been shut down, in effect, since March 16, 2020, due to restrictions on non-essential travel and operations in New York City. There is currently no plan to reopen the courthouse, and, when reopening occurs, it is likely to be in phases that will prioritize criminal over civil matters. Thus, the Court cannot predict when the parties will be able to “appear in person” for a bench trial.

The Court finds that the COVID-19 pandemic, and the months’ long delay it has caused—indeed, continues to cause—in all court proceedings, constitutes “good cause and compelling circumstances” to hold the bench trial in this matter via video-conference. As in [In re RFC & ResCap Liquidating Tr. Action, 444 F. Supp. 3d 967, 967 (D. Minn. 2020)], this Court finds that it is “absolutely preferable” to conduct the bench trial via such “contemporaneous transmission,” as permitted by FRCP 43(a), rather than to delay the trial indefinitely. The short duration of the trial, and the limited nature of the issues to be tried and testimony to be presented, reinforce this conclusion. Furthermore, the Court anticipates that, once the courthouse is fully reopened, the Court will be faced with a backlog of primarily criminal matters, which will further complicate scheduling of the bench trial in this matter and needlessly burden the Court’s schedule and resources at that time.

To the extent that Rule 43(a) also requires “appropriate safeguards,” here, such safeguards are manifold. As a nonjury trial is required by the statute, the issues of prejudice that could arise in the jury context are simply absent. Most, if not all, of the witnesses who will be testifying have been deposed by the parties and have already testified in open court before Judge Spatt in connection with the preliminary injunction hearing, and thus have been subject to cross-examination by opposing counsel and credibility evaluation by the Court. While the provisions of the rule necessarily embrace (and, at a certain point in the not-too-distant past, were limited to) audio transmission, the proposed remote trial will permit the review of synchronous audio and visual transmission, a vast improvement over telephonic testimony. And, while the provision at issue only involves contemporaneous transmission, the other exceptions of the Rule often permit pre-recorded video testimony to be admitted. In contrast to those circumstances, Zoom and similar technologies permit real time testimony, allowing for direct inquiry from the Court where appropriate.

The most telling weakness in the Town’s arguments, though, is the following fact: counsel represents that one of defendants’ witnesses, Dr. Stephan Thernstrom, must testify via video technology due to his age (85) and “extreme health problems.” Tr. of Proceedings, 8/7/20 at 21-22. Indeed, this witness required an accommodation before the advent of COVID-19, to wit: testifying via video from the U.S. District Court in Washington D.C., but under present conditions, even that accommodation proves insufficient. Id. Dr. Thernstrom is clearly a critical witness for defendants, as reflected in the opinion of Judge Spatt, who relied heavily on Dr. Thernstrom’s opinions, citing him no less than eight times in his decision on plaintiffs’ motion for preliminary injunction, and quoting extensive passages from his testimony. DE 133 at 17, 18, 25, 26, 53, 70. In opposing the present application, counsel for defendants emphasized that conducting trial virtually would “prejudice Defendants’ ability to…cross-examine” witnesses, particularly plaintiffs’ experts. DE 185 at 2. Given that one of defendants’ key experts must be cross-examined via video technology, the argument is at best logically inconsistent.

Based on the foregoing, the application to proceed with a virtual trial is granted, to commence on September 30, 2020 at 9:30 AM. Counsel for all parties are directed to arrange a conference at a mutually convenient time prior to this date, including this Court and its staff, to have Impact review the logistics of the virtual trial.


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