Pharma companies Ferring and Serenity began July 6 trying what should be a week-long patent case by remote video. After consultation with the court’s technician, and taking input from the parties on procedures, Chief Judge Colleen McMahon opted to utilize a secure Zoom-based video platform, instead of attempting to manage physical social distancing, to conduct the bench trial safely.
In addition to attending to COVID-19 concerns, with a number of witnesses based in Europe, the approach is certainly one that saves costs. Here are some of Judge McMahon’s thoughtful comments on trial procedures, including managing exhibits with remote witnesses and options for attorneys to conduct cross remotely or in the courtroom. Chief Judge McMahon’s practice is apparently to take direct examination testimony in bench trials in the form of affidavits, so the primary witness testimony will be on cross-examination:
… I have made two decisions that could not be made during last week’s conference call. First, the trial will be “all remote,” at least in the sense that all the witnesses will testify remotely. Second, the provider will be TrialGraphix, using the product TRIALanywhere. …Given all the constraints we face, the witnesses should testify from where they reside. I will have read their directs and the expert reports. T can watch their crosses. Every witness for both sides gets the same benefit and suffers from the same perceived handicaps. It is the fairest way to proceed. Whether counsel would prefer to cross examine remotely or from the courtroom is up to you, but you need to work it out, because I will not have just one side’s lawyers in the courtroom. I am convinced that it can be done safely from the courtroom, and there are certainly good reasons to want you in the courtroom with me (it is a huge courtroom, you know how easy it will be to keep socially distanced). But if counsel from Texas have a problem living out of a suitcase in Manhattan for two weeks (and this could take seven or eight trial days, because I am convinced the remote trial will run longer), then everyone should just be remote. If we have a glitch that costs us a few hours, or a day, it is more easily dealt with if we are all working remotely. If it were safe, I might consider having lead trial counsel come to court after I have heard all the witnesses, so we can have a real bench trial closing argument, with a lot of give and take, lawyers answering my questions as well as making their points. I would not expect – indeed, I would strongly discourage – bringing a lot of people to court for closing argument. … The various protocols that [Ferring lead counsel] Ms. Bourke described in her letter of May 19, 2020 – including especially the shipping of sealed binders to witnesses – strike me as eminently sensible. I will be working off a hard copy set of exhibits, because I like to take notes on exhibits as we use them. Whether an attorney is present with witnesses during their testimony is entirely up to you; I rather expect that one will be present, which would make it even easier to deal with exhibits, since the sealed binders could be provided to counsel, who, as officers of the court, could be counted on not to break the seals or show the documents to their clients prematurely. Making these decisions now means that we should be in a position to proceed without difficulty by July 6.
The referenced letter from Ferring counsel describes the video platform furnished by TrialGraphix, and the proposed management of remote witnesses, in more detail. One interesting suggestion was the shipment of all demonstratives and exhibits not used in a witness’s direct to him or her 48 hours in advance in sealed binders, with the witness breaking the seal on camera. That provides logistical certainty while also making sure that the witness is not able to preview documents used solely for cross-examination. Although it is not mentioned, I would expect there is some procedure for unexpected testimony necessitating new documents. They could be available on a restricted access server, for example, and only made available remotely to the witness when the need arises.
The case is Ferring Pharmaceuticals Inc. v. Serenity Pharmaceuticals, LLC, Civil Action File No. 1:17-cv-09922-CM-SDA (filed Dec. 20, 2017 in the S.D.N.Y.). If you’d like to view a portion of it (there is no wait or security screening), here is public viewing information:
REMOTE PUBLIC ACCESS INFORMATION FOR TRIAL: The Court will be conducting a bench trial from July 6-16 in Ferring Pharmaceuticals In c. et al v. Serenity Pharmaceuticals, LLC. Chief Judge Colleen McMahon will be in an open courtroom (Courtroom 24A), with the parties participating via videoconference. The public is free to attend in person or dial-in. Dial by your location + 1 301 715 8592 US (Germantown) + 1 312 626 6799 US (Chicago) + I 646 876 9923 US (New York) + 1 253 2 15 8782 US (Tacoma) + 1 346 248 7799 US (Houston) + 1 669 900 6833 US (San Jose) Meeting ID: 979 9713 4374 Password : 585807. Audio or video reproduction of the proceeding is strictly prohibited. (Signed by Judge Colleen McMahon on 7/6/2020) (mml) (Entered: 07/06/2020)