Since the New York courts are closed to almost everything except emergencies, most of the litigation has come to a standstill unless the parties agree to continue. No attempts and no conferences.
Many lawyers, including myself, have made virtual statements. But what if one of the sites – the one that benefits the most from delays – simply tells you to stuff it? You don't go forward.
Movement practice to advance recalcitrant litigation has just begun.
I think we now have the state's first judicial opinion on this, which specifically addresses objections to COVID-19.
Last week, justice Robert David Kalish, who was based in New York County, ordered the parties to move to "deposits" on a labor issue "by remote means." Rest assured that this decision will be cited frequently in the coming months.
The defendants had tried to put the case to a halt, arguing that they were ready to continue, but that "deposits should be made in the traditional personal format after the restrictions on social distancing associated with the current COVID-19 pandemic were lifted were ".
As the Court found when it rejected the attempt to stop, "there is no prediction when all pandemic restrictions will be lifted."
There is a risk that you are obviously making poor arguments and that is that a judge will point them out and set a precedent that you are not satisfied with. This was the case here with the lawyer of the accused Time Warner Cable:
While neither side claims that it is unable to video these deposits – and indeed during a Skype for Business conference prior to the application, TWC's lawyer found that he had recently sent a six-hour deposit in another case Had done remote access -. TWC's lawyer argues that the testimony of the removed witnesses should be made personally because he (and the witnesses) "do not feel comfortable participating in a deposit made by video conferencing technology."
Ouch. Bad argument reinforced by the court.
The defense lawyer also tried to stop other discoveries, saying that due to the virus, no process could take place anyway.
But Justice Kalish knew that the litigants had to adapt to this “new normal” because there is no end in sight for the pandemic:
This court disagrees with TWC's attorney. It would be unacceptable to delay the discovery until a vaccine is available or until the pandemic has otherwise resolved. It goes without saying that business as usual is no longer normal. The lawyers and their clients are currently grappling with the “new normal” caused by the COVID-19 pandemic. Among other things, this “new normal” means that it is no longer safe and practical to make deposits personally, as was the case with the “old normal”. The TWC lawyer suggests that this case be put on hold until the "old normal" returns.
Although the Court did not use the phrase "justice is delayed, justice is denied", it was essentially visible to everyone:
However, as in any case, there is always concern that a witness can no longer testify for a number of reasons, including illness or death. During a pandemic, this worry is stronger. In addition, it remains uncertain when the “old normal” will return – if it should ever be.
Finally, the court kicks the defense attorney a little by saying that if you really want to sit in the room with your client, do it. But that doesn't mean that others have to take this risk:
Although the TWC lawyer believes that if he cannot physically sit next to the removed witnesses during their dismissal, this order will not prevent him from doing so. To the extent permitted by law and social distancing guidelines, the TWC's lawyer (or a co-lawyer of his choice) may be in the same room next to these distant witnesses, while the plaintiff's lawyer appears in a distant manner.
There are precedents for remotely depositing, but this has always been done on a case-by-case basis, based on "undue harshness". For example, if a person in New York City was injured and returned to a foreign country but was unable to return for deposit due to visa reasons, a court would call this "inappropriate harshness". After all, people are not immune to their own negligence simply because they were "lucky" to hurt a foreigner.
But this decision takes the pandemic and uses it widely. This scene happens thousands of times across the state. To the extent that it is quoted and used by others (I think), it affects every case that tries to move forward.
It should be noted that not all of the accused behaved in this way. Many statements were made with the attorney's consent.
But those who want to use the pandemic to gain a process advantage are now being notified: If the rest of the judiciary follows Kalish justice, it will not end well.
The case is Johnson vs. Time Warner Cable.
To update: Shortly after the publication, a friend warned me this morning of a decision about virtual deposits from the Nassau district (Justice McCormack). In this real estate dispute (repayment of the down payment for a house) the question of the re-filing of the plaintiffs was informed before the courts were closed. The judge ordered the deposits to continue and obviously made a decision before anyone could scream, as he was obviously anticipating an upcoming question as to whether deposits should be done virtually:
Deposits are made via Skype, Zoom or other electronic means, unless all parties and lawyers agree on personal deposits with the appropriate social distance. (Emphasis in original)
The case is here: McDonald v. Pantony
Update # 2: In Albany County, judge Christopher P. Baker ordered on June 2, 2020, that a doctor's deposit be made remotely in the event of medical malpractice.
When interpreting Governor Cuomo's executive orders that a court should not enforce the "personal presence" of doctors from institutions that treat COVID-19, he wrote that this means that they should be carried out remotely. In other words, the executive regulation should stop the potential spread of the virus and should not delay lawsuits against doctors.
The doctor, of course, has the right to have his lawyer physically present if the two want it, but this does not mean that the opposing lawyer or the clerk must be in the same room.
The case is Melkonian v Albany Medical Center.