Delaware Bankruptcy Court Restarts In-Court Hearings

By Rose Krebs
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Law360 (June 7, 2021, 3:45 PM EDT) -- The Delaware bankruptcy court's latest revised rules amid the ongoing COVID-19 pandemic permit in-court proceedings to be held at the discretion of judges, with parties still encouraged to participate remotely.

In an order signed by Chief Judge Christopher S. Sontchi on Friday, the court said that no on-site hearings had been held since they were moved to remote proceedings last year because of the pandemic. Last June, a court order gave judges discretion to hold in-court hearings for "critical cases," but no on-site hearings have been held since, according to Friday's order.

The bankruptcy court entered an initial order last March, first postponing matters deemed not time sensitive and limiting proceedings to telephone or video conference. The court has since continued to conduct hearings through a combination of telephone and video conference.

Under Friday's order, which took effect that day, hearings "shall be held(i) by video conference, or (ii) by a combination of video conference and on-site in a courtroom."

"On-site court hearings shall be held at the discretion of the presiding judge, on a case-by-case basis, and shall be minimized and limited to critical cases only," the order said. "Persons are allowed and encouraged to attend on-site court hearings remotely whenever possible."

Also, the order said the bankruptcy court's facilities in Wilmington "are reopened to the public for the purpose of conducting on-site court hearings and making hand deliveries," subject to certain conditions, including mask-wearing and social distancing rules that remain in effect.

"All persons in the courtroom are required to wear a mask or face covering, provided, however, that persons sitting at counsel table may at their preference remove their masks or face covering," the order said.

Those addressing the court from the counsel table or podium must remove their mask or face covering, as does any witness who is testifying. Counsel and others will still be able to attend hearings remotely, with counsel permitted to examine witnesses remotely.

"Persons not actively participating in a court hearing are strongly encouraged to participate remotely," the order said. "Local counsel may appear remotely."

Judges will have the discretion to revise conditions and determine on a case-by-case basis how evidence will be submitted and how hearings will be conducted.

Those who don't comply with the rules and "any instructions of any court security officer or other bankruptcy court personnel will be denied access to or be ejected from the premises," the order said.

The bankruptcy court's order, which is its sixth order governing how hearings are handled amid the COVID-19 pandemic, comes on the heels of an order late last month from Delaware's District Court that the federal court was moving to phase three of its four-stage reopening plan on Monday.

The phase will include the start of "a return to normal court operations" and the resumption of "on-site and public-facing activities, including court proceedings, at the discretion of the presiding judge in each individual case," the May 25 order said. The District Court's order also said the court currently remains "able to conduct only one jury trial at a time."

"It is expected that with the easing of social distancing requirements ... and improving health conditions the court will soon be able to expand to conducting multiple simultaneous jury trials (although jury selection is likely to be limited to one trial per day)," the order said.

The order said masks "will continue to be required in all public common areas, and social distancing requirements will be reduced from six feet to three feet in all areas of the courthouse."

"Presiding judges will determine if and when masks may be removed in the courtroom," the according to the order.

In April, the Delaware federal court lifted a previous civil and criminal jury trial suspension that had been issued amid the ongoing pandemic, with judges given discretion whether to allow cases to proceed to trial.

--Editing by Peter Rozovsky.

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