The Role of the Internet in the Conduct of Litigation

October 15, 2013 | Professional Liability | Complex Torts & Product Liability | Intellectual Property

Much has been written (in this column and elsewhere) regarding lawyers’ adoption of social media and other Internet enabled applications for such diverse purposes as discovery, advertising, client communication,  research and the like.  Indeed, due to the proliferation of portable devices, including laptops, smartphones and tablets, whether in their offices or not, lawyers now rely on ubiquitous and pervasive Internet access to perform a host of practice related tasks.  It has become such an integral part of lawyers’ day-to-day professional lives that some level of familiarity with available Internet technology is expected.

Perhaps no practice area has been as affected by the availability of Internet enabled applications as the practice of litigation.  To date, many of the court decisions in this area have focused on the impact of such applications to matters that are extrinsic to the conduct of court proceedings, such as the admissibility of social media content as evidence or the permissible scope of social media use by lawyers or judges in ways that blur private and public life.

Two recent cases have addressed the use of Internet enabled application in the conduct of a trial, that is, in a courtroom.  In both cases – one criminal and the other civil – the courts pointed to the growing societal dependence on the Internet as a reason to permit Internet enabled communication applications to be used to enable “virtual” participation in trial proceedings.

The Antecedents

The beginning point for the discussion is the decision issued nearly 25 years ago by the New York Court of Appeals in People v. Cintron.[1] In that case, the court upheld the use of two-way televised testimony of a vulnerable child witness and concluded that there was no violation of the criminal defendant’s rights under either the federal or state Constitution.

Building on Cintron, the court recently decided People v. Wrotten.[2] Here, it found that the Supreme Court, Bronx County, had not erred in permitting an 85 year old out of state adult complainant to testify via real-time, two-way video after finding that he was unable to travel to New York to attend court because of age and poor health.  The court ruled that the trial court’s authority to use “innovative procedures” where necessary to carry into effect its powers and jurisdiction[3] vested the trial court with the authority to fashion the video solution.

The court pointed out that there was no explicit statutory prohibition regarding two-way televised testimony at trial and it decided that the use of such a tool was within a trial court’s discretion. The court stated that the trial court, “acting pursuant to its inherent powers as defined in the New York Constitution and Judiciary Law, was therefore not precluded from exercising its authority to utilize necessary, extra-statutory procedures.” 

The court acknowledged that live televised testimony was “certainly not the equivalent of in-person testimony,” and it stated that, as a result, the decision to excuse a witness’s presence in the courtroom should be weighed carefully. Indeed, it decided, televised testimony required a case-specific finding of necessity and was an “exceptional procedure to be used only in exceptional circumstances.” The key point of this decision, however, was the Court’s conclusion that the trial court had the authority to use a procedure “necessary to carry into effect the powers and jurisdiction possessed by it.”

In large measure, it is that power that has led to two recent, and noteworthy, rulings concerning Internet enabled communication applications in the conduct of trial.

Elderly Plaintiffs

In late July, Senior U.S. District Judge Jack B. Weinstein of the Eastern District of New York issued an important decision addressing the use of an Internet enabled communication application to conduct class litigation pretrial proceedings in Boykin v. 1 Prospect Park ALF, LLC.[4]

In that case, the legal representatives of three former residents of the defendants’ assisted care facility in Brooklyn sought relief on behalf of themselves and a putative class concerning allegations of overcharge for rent based upon the alleged status of the defendants’ license to operate the facility. As Judge Weinstein pointed out, as residents in the assisted care facility, the individual members of the putative class were mainly elderly, frail, and with little knowledge of civil litigation.

Weinstein then issued an order directing the parties to arrange for audio broadcasting of a summary judgment hearing scheduled for Nov. 14, 2013. If practicable, Weinstein wrote, video live-streaming of the hearing had to be provided. He directed that the broadcast be streamed to a communal room at the assisted living residence where putative class members could listen to or view the proceedings, and that a “[p]rominent notice” of the transmission be provided to putative class members no fewer than 15 days in advance of the hearing.

Weinstein reasoned that technological advances had “mooted the idea that depersonalization” was required in aggregate litigation, noting that the Internet and social networking tools were “means of creating more efficient communication among lawyers, clients and the court.” Weinstein cited the “inherent power” of trial courts to achieve the orderly and expeditious disposition of cases, and declared that courts must give “appropriate attention” to ensuring that adequate information about aggregate litigation reached the real parties in interest and the communities that might be affected by a court’s decisions. Weinstein emphasized that “[c]onnecting the court with the community its work might affect” was “essential,” and concluded that “[o]pen, accessible and well-advertised hearings provide the best opportunity for contact between the court and litigants.”

Skype as a Means of Testimony

In another matter, this past September, the county court of upstate Sullivan County issued its decision in People v. Novak[5]and approved the use of Internet enabled communication to present testimony at trial.  In that case, the defendant was charged with murder in the first and second degree, burglary, arson, larceny and insurance fraud involving the death of his estranged wife. The defendant, by motion, requested that the court permit one of the defense witnesses, Deputy David Wiggins, to testify via live, two-way video conference through the popular Internet program, Skype.

According to the defendant, Wiggins, a Deputy Sheriff for the Volusia County Sheriff’s Department in Florida, had a relationship with the prosecutors’ principal witness. The defendant contended that Wiggins was a necessary witness for the defense and was not able to testify in New York. Accordingly, the defendant argued that Wiggins had to be permitted to do so from a remote location via the Internet.

Prosecutors did not submit opposing papers – which perhaps is an indication of how far the acceptance of Internet applications in the courtroom has come in recent years – but asked that the court make a finding of necessity. The court did so, and it granted the defendant’s motion.

In its decision, the court observed that the defendant was making his application for a two-way video conference of a defense witness because the witness’ current police assignment would not permit him sufficient leave to attend the trial in New York. It found that there was a necessity to have Wiggins testify via Skype due to the length and time constraints of the defendant’s trial, the hardship he would experience in having to lose time from work to travel from Florida to New York, the delay in the trial if he had to arrange to travel to New York to testify, and the “unexpected use of this witness” by the defense. 

In addition, the court continued, with the use of live, two-way video via Skype, the witness would “be subject to cross-examination before the jury, making the testimony reliable.”[6] Specifically finding that “Internet Skype communication is reliable, accurate and widely used in society and commerce,” the court then granted the defendant’s request to have Deputy Wiggins testify remotely via two-way video conference/Skype. The parameters of the court’s order were that the:

  • the testimony be presented in the courtroom, in full view of the jury and the defendant;
  • the defendant coordinate with the court’s chief clerk to arrange for the proper equipment to be in working order and in communication with the equipment at the witness’ location on or before the date the witness was expected to testify; and
  • the two-way video testimony of the witness be recorded by a court stenographer and preserved for appellate review in the same manner in which it would be recorded if the witness were testifying live in the courtroom.

The typical litigator in New York has, by necessity, become familiar with court requirements as to such pre-trial practices as “e-filing,” electronic redaction, etc., but these types of electronic communication have not yet displaced the need to make court “appearances.”  It may be, however, that a new age of trial practice is coming as court sanctioned use of Internet enabled communication applications enables participation in court proceedings by both parties and witnesses.  Many issues remain unexplored, such as the attendant cost and technical issues that may be encountered as parties increasingly rely on the courts’ “bandwidth” to conduct proceedings.  However, it cannot be gainsaid that the New York courts are evolving in their use of technology.

[1] 75 N.Y.2d 249 (1990). Soon after, the U.S. Supreme Court held that live testimony via one-way closed-circuit television was permissible under the federal Constitution, provided there was an individualized determination that denial of “physical, face-to-face confrontation” was “necessary to further an important public policy” and “the reliability of the testimony” was “otherwise assured.” Maryland v. Craig, 497 U.S. 836 (1990).

[2] 14 N.Y.3d 33 (2009), cert. deniedWrotten v. New York, 130 S.Ct. 2520 (2010).

[3] Judiciary Law §2-b(3).

[4] No. 12-CV-6243 (E.D.N.Y. July 30, 2013).

[5] No. 233-2012 (Cty. Ct. Sullivan Co. September 4, 2013).

[6] The court noted that in this case the defendant was the party making the request, which, the court said, minimized concerns regarding Confrontation Clause issues. 

Reprinted with permission from the October 15, 2013 issue of the New York Law Journal.  All rights reserved.

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