More than two years into the Covid-19 pandemic, the Commercial Division Advisory Council (“CDAC”) has proffered an amendment to the Commercial Division Rules that reinforces a court’s authority to order virtual proceedings even as many offices are resuming in person operations.  In particular, CDAC has proposed an amendment to Commercial Division Rule 36 (“Rule 36”), which currently allows virtual evidentiary hearings and bench trials upon consent of all parties.  The amendment would explicitly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, “upon a motion showing good cause, or upon the court’s own motion”.[1] 

In a memorandum advocating for the amendment to Rule 36,[2] CDAC explains that Rule 36 (virtual evidentiary hearings and bench trials upon consent of all parties) and Rule 37 (remote depositions upon consent of all parties or upon showing of good cause) were promulgated to facilitate the court’s operations during the Covid-19 pandemic.  Even before Covid, however, courts have authorized virtual proceedings pursuant to N.Y. Judiciary Law § 2-b(3), which empowers courts “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.”[3]  Though Rule 36 requires the consent of all parties for a virtual proceeding, courts have found that they have the authority to order such proceedings without the consent of all parties pursuant to N.Y. Judiciary Law § 2-b(3).  Accordingly, CDAC believes the proposed amendment to Rule 36 is necessary to confirm that courts can order such proceedings without the consent of all parties, either upon a motion showing good cause, or upon the court’s own motion.  The proposed amendment would also make Rule 36 more consistent with Rule 37, which allows for remote depositions without the consent of all parties upon a showing of good cause. 

The proposed amendment to Rule 36 outlines factors for courts to consider in determining whether a party has shown “good cause” for an evidentiary hearing or bench trial to proceed virtually.  These factors include the efficiency of conducting a virtual proceeding, the safety of the parties, and prejudice to the parties.  In terms of the practical concerns that litigants have raised to resist virtual evidentiary hearings and bench trials, CDAC encourages parties to utilize the State of New York Unified Court System’s Virtual Bench Trial Protocols and Procedures (“Protocols and Procedures”), which we have previously written about here.[4]

The Administrative Board of Courts is accepting comments to the proposed amendment to Rule 36 by November 23, 2022.