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  • Posted on: Sep 11 2020

Covid-19 has created numerous health, economic and other significant problems throughout the world.  Social distancing and quarantining during the pandemic is a means to address the spread of the virus.  Among the methods to permit business to continue while in quarantine is the use of video conferencing technology as a substitute for in-person meetings.  Businesses and individuals have embraced the use of virtual meetings so that necessary interactions – both business and personal – can proceed in an effort to return to normalcy.  

As William E. Gladstone, a former British Statesman and Prime Minister, once said, “justice delayed is justice denied” – a quote often used by litigants and Courts to stress the importance of moving legal matters forward.  While New York’s court system, along with others throughout the world, came to a temporary halt as a result of Covid-19, judges and court administrators have quickly adapted to the crisis through, in many cases, resort to technology.  Thus, in order to keep legal proceedings moving, courts have, for example, expanded the use of electronic filings of legal papers, conducted legal proceedings using video conferencing technology and the like.  Indeed, Judiciary Law § 2-b(3) permits a court to “devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.”

By Order dated September 4, 2020, in Ciccone v. One W. 64th St., Inc., the court addressed the need for technology to advance the objectives of litigants in the face of an unprecedented pandemic.  Ciccone is the tortured tale of Madonna’s year’s long fight with her co-op board.  In 2016, Madonna commenced an action against her co-op to challenge certain restrictions in her proprietary lease and sought the co-op’s books and records to prove her claims.  Notwithstanding the court’s determination that Madonna’s “challenge to the co-op’s actions was time-barred, Madonna refused to “drop her distinct books-and-records claim intended to support that challenge … [and] went so far as to move (unsuccessfully) for summary judgment on that claim in the spring of 2018.”  The court determined that Madonna “‘brought and continued to pursue her [book-and-records] claims in this action in bad faith’ within the meaning of the co-op lease – and therefore that defendant was entitled to its reasonable attorney fees incurred in defending the action.”  Accordingly, the court appointed a referee to conduct a hearing to determine the amount of legal fees to which the defendant was entitled.  While the defendant wanted to resolve the matter on papers, Madonna argued that a 3-5-day hearing was necessary and testimony from 20 witnesses – every defense lawyer that billed time to the matter – was required.

The hearing was adjourned due to settlement negotiations, which ultimately broke down.  Thereafter, Madonna sought the deposition of a former defense counsel lawyer and served subpoenas on “every current and former [defense counsel] attorney who had worked on this action.”  In addition to testimony at the fee hearing, the subpoenas sought the production from each subpoenaed attorney all their “‘notes, time records, emails, and other correspondence or documents regarding this action,’ including ‘unredacted time records’ and ‘unredacted intra-office communications’ with other [defense] attorneys.”  Defendants moved for, and received, a full protective order.

The “contentious” hearing began in February of 2020 and was scheduled to continue on March 12, 2020 but did not go forward due to COVID-19 restrictions.  While defendant was willing to continue the hearing virtually, Madonna “objected vehemently to a virtual hearing….”  The referee referred to the Court the question of whether the attorney’s fees hearing should proceed virtually.  The court explained that:

The current dispute requires this court to balance weighty considerations. The judicial system traditionally prefers to conduct proceedings in person—a point that has particular force in a fact-finding hearing such as the one at issue here, for which credibility could conceivably prove relevant. The parties and the court each have vital and complementary interests in seeing actions resolved expeditiously and fairly after a proper opportunity for all sides to be heard. And, of course, in light of the COVID-19 pandemic (and the havoc it has wreaked worldwide), the New York court system owes a responsibility to avoid putting lives at risk by resuming in-person proceedings court (sic) prematurely.

The court rejected Madonna’s proposal to adjourn the hearing indefinitely until in-person proceedings could safely be conducted.  The court recognized that, although the limited attorney fee hearing was “a collateral matter limited to a dispute over money,” it was not “trivial”; although “less pressing” than other more significant matters.  Nonetheless, the court was:

loath to permit plaintiff to continue to drag out proceedings to avoid paying the costs of the legal work that she forced defendant and its counsel to undertake needlessly. Indeed, but for the time spent litigating and adjudicating plaintiff’s repeated efforts to obtain extensive and burdensome discovery in an attorney-fee proceeding, the fee hearing would likely have been completed before COVID-19 even became an issue.  (Emphasis in original.) 

While the court determined that it did not want to wait for an in-person hearing, it also deemed it necessary to determine “whether conducting the fee hearing in this case virtually is a viable alternative—i.e., whether this mode of proceeding is not only safe and expeditious but also fair to the parties, and whether this court has the authority to require the parties to participate even over objection.”

In deciding the issue in favor of holding a virtual hearing, the Ciccone court agreed with the court’s finding in A.S. v. N.S., 2020 NY Slip Op 20161 (Sup. Ct. NY Co. July 1. 2020), that “under the circumstances of the case before [Judge Dawson] (a contentious custody dispute), holding a virtual hearing was feasible, fair, and preferable to further postponing trial.”  In addition, the Ciccone court was also “guided not only by the decision in A.S. v N.S. but also by rulings from federal trial courts across the country that consider how to proceed during the COVID-19 pandemic [and which] have consistently determined that given the pandemic, it is necessary, appropriate, and fair to hold bench trials entirely by videoconference.” (Footnote omitted.)  Further, the court fund that a virtual hearing was authorized by Judiciary Law § 2-b(3).

The Ciccone court went on to analyze numerous federal authorities addressing whether to direct virtual trials and hearings and stated:

The federal trial courts considering the issue have acknowledged that conducting a trial by videoconference is certainly not the same as conducting a trial where witnesses testify in the same room as the factfinder, and that certain features of testimony useful to evaluating credibility and persuasiveness, such as the immediacy of a living person can be lost with video technology. At the same time, these courts have found that given advances in technology, the near instantaneous transmission of video testimony permits the court to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.  

Federal courts have also found that given the unprecedented nature of the circumstances faced by our society at present due to the COVID-19 pandemic, compelling reasons exist to conduct trials virtually.  And given the court closures required by the pandemic, the months’ long delay that has resulted, and the continuing lack of clarity about when it will be safe to resume normal in-person operations, the courts have concluded that it is ‘absolutely preferable’ to conduct the bench trial via such contemporaneous transmission rather than to delay the trial indefinitely.  (Citations, internal quotation marks. ellipses and brackets omitted.)

The Ciccone court found the reasoning of the courts it analyzed to be “persuasive.”  The court also noted that:

[a]dditionally, current technology enables the court and litigants to participate in reliable, real-time videoconferencing with high image quality using readily available computer programs. A hearing conducted virtually by videoconference will allow for cross-examination of witnesses and for both counsel and the court to assess the witnesses’ demeanor and credibility through seeing them up close on-screen.  Such a hearing may not be equivalent to hearing testimony and cross-examination in person. But it is more than adequate to ensure that both sides have a full opportunity to be heard and that [the appointed] Referee … can make a properly informed report and recommendation following the hearing.  

Indeed, the particular context of this hearing makes it especially amenable to being conducted virtually. The issue before [the appointed] Referee, namely the amount of defendant’s reasonable attorney fees, is discrete and straightforward. That issue will be heavily based on documentary evidence in the form of defendant’s counsel’s invoices and billing records, and—as this court concluded in quashing plaintiff’s testimonial subpoenas—will require comparatively little testimony from live witnesses. (Footnote omitted.)

The court concluded that “in the exercise of its discretion under Judiciary Law § 2-b(3), that this case presents extraordinary and compelling circumstances in which it is both necessary and appropriate to require the parties to participate in a hearing conducted by videoconference.”  The court then considered and rejected Madonna’s objections to a virtual hearing.

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