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In SDNY Pharma Patent Trial Will Have Virtual Witnesses Chief Judge Says Zoomless Platform

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, May 20 –  How will civil trials be conducted, as the U.S. re-opens in the wake of so many COVID-19 deaths?

On May 20 U.S. District Court for the South District of New York Chief Judge Colleen McMahon held a pre-trial conference in the patent case Ferring v. Serenity Pharma. 

  The day before in a half hour Q&A with Inner City Press Chief Judge McMahon previewed some of how trials might go, here.

On May 21 she said she is leaning toward virtual testimony.   She said there may be plexi-glass around the witness box -- but that while she will be in her courtroom, skittish witnesses can testify remotely. 

    Some of the counsel responding seemed to not grasp there is a new world ahead. 

  Their discussion turned to whether there is a benefit to having the cross examining lawyer in the courtroom, if the witness is remote.

    A lawyer said Zoom is not used in the court - they are using the platform but what is running on the computers is a litigation program with Zoom underneath.

    Another lawyer says "They follow the Department of Defense rules on use of Zoom." Based on Zoom's ownership? Inner City Press will continue to follow this.

This case is Ferring Pharmaceuticals Inc. et al v. Serenity Pharmaceuticals, LLC et al., 17-cv-9922 (McMahon) 

  On May 19, Chief Judge McMahon said SDNY staff will be bought back into the building. They will have wear masks, and gloves if they interact with the public.

    Inner City Press asked about criminal defendants being asked if they would consent to a non-jury trial by a single judge, as for example accused Sarah Lawrence College "sex cultist" Larry Ray as been offered by SDNY District Judge Lewis J. Liman.

  Chief Judge McMahon pointed out that in the Federal system, not only the defendant but also the U.S. Attorney's Office would have to consent. Would they?

   In the interim, much work has been done by SDNY and certainly other judges, some in their courtrooms or chambers and some not. Judge McMahon, who spoke from her chamber and comes to the courthouse every day, said it is entirely up to each judge and much productive work can be done in telephone conferences.

  In fact, she said, even after re-opening more civil case conferences may continue to be by phone. Inner City Press acknowledged that one up-side, as a journalist cover the courts, to the current virtual set-up is the ability to cover more than a single case at once.

   Judge McMahon noted that given greater spacing and physical distancing in the courtroom when re-opened, there will still be call in numbers and Inner City Press might continue to find it productive to sometime cover the case this way.

   Inner City Press raised one kerfufel of this set up, that in some civil cases despite the call-in number being public and the Press identifying itself when asked, if only by AT&T, some counsel forget that it is public and begin to discuss settlement numbers. Then they get angry what was said in a public call is reported.

  Judge McMahon indicated that she could see how that could happen, that perhaps judges should be more attuned when what is being said veers into settlement figures. A bit more on Patreon, here.

   The next step will be some physical plans, and the more SDNY court staff coming back in. Inner City Press will be here - watch this site.


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