Chancery Eyes Remote Hearings To Stem Coronavirus Risk

By Jeff Montgomery
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Law360 (March 6, 2020, 8:59 PM EST) -- Acknowledging concerns about the new coronavirus in one of the nation's busiest corporate and commercial litigation forums, Delaware's Chancery Court said Friday it would promptly consider requests for remote teleconference hearings and called for advance disclosures of potential courtroom exposure risks.

In a standing order on "COVID-19 Precautionary Measures" posted on the court's webpage, Chancellor Andre G. Bouchard cited a string of reports on the serious public health threat posed by the virus as well as national and international travel advisories aimed at controlling the spread of illnesses.

The order noted that the Chancery Court regularly conducts trials and hearings involving participants from around the United States and other countries.

Given the concerns, the chancellor said, "the court will conduct conferences and hearings telephonically when it believes it would be practicable and efficient to do so, and will promptly consider any request" for a telephone hearing rather than in-person appearance.

The announcement followed close on the heels of a rare public statement by the state's judiciary encouraging members of the public to stay home if they are experiencing symptoms of illness of the sort associated with coronavirus infections, and to notify the appropriate parties if they have a court date scheduled.

Cautioning that there is "at present no cause for alarm," the statement from the judiciary noted that the public health situation has a potential to affect the court system, which operates multiple and in some cases crowded facilities. Although the Chancery Court issued its own statement, most state judiciary sites see heavy traffic. The state Superior Court's Complex Commercial Litigation Division, meanwhile, also handles disputes that bring together parties from around the nation.

In the case of Chancery Court trials, the order called for written notification to key parties when they learn of the possible attendance of a person with COVID-19 or who has been in contact with an individual who may be infected. Those involved must confer on whether the risk can be resolved by use of video conferencing, substitution of other attorneys or individuals or a delay in the proceeding.

Lewis H. Lazarus, a Morris James LLP partner and chairman of the firm's litigation practice group, said late Friday that it already is not uncommon for the Chancery Court to handle scheduling sessions and some other types of motions by teleconference. The court has also allowed witnesses to testify by live videoconference in the past when necessary.

"The court is not talking about ending trials entirely. It's talking about being prudent and putting the burden on the parties to let other counsel know, and the court know, if there's a reason to be concerned because a witness has a virus or reason to believe they've been exposed," Lazarus said. 

A joint letter detailing the issue, steps taken, alternatives and any disagreements must be provided to the court within three days of an exposure risk notification, and as soon as practical before the hearing or trial involved.

"The presiding judicial officer in a case shall be responsible for overseeing the implementation of these procedures," the order said.

The pace of teleconference use already had begun to pick up in the Chancery Court, which has seen an increase in the numbers of motions to expedite proceedings and cases going to trial in recent years.

"My bottom line is that this is a prudent order that properly balances concern for public health with allowing the administration of justice to go forward," Lazarus said.

As of late Friday, Delaware had not recorded a confirmed report of a COVID-19 infection and illness, although bordering New Jersey and Maryland both had cases among the 164 on record with the Centers for Disease Control and Prevention by late afternoon. Nineteen states had cases in all, with the infection a factor in 11 deaths.

--Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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