Southern District of New York Court Orders “All Remote” Bench Trial

by Eric Caligiuri
The IP Law Blog

In Ferring Pharmaceuticals Inc. et al v. Serenity Pharmaceuticals, LLC et al, 1-17-cv-09922 (SDNY 2020-05-27, Order), Chief Judge C.J. McMahon of the Southern District of New York ordered an upcoming bench trial set to begin on July 6, 2020 in a patent infringement case to be “all remote,” at least in the sense that at a minimum all the witnesses will testify remotely.

Judge McMahon stated that the decision to go “all remote” was “a no-brainer.”  The Judge reasoned that under the protocols the Southern District of New York was adopting, individuals who have traveled abroad in the preceding two weeks would not be permitted to enter the courthouse.  And, it was noted that in this case there would be at least five or six witnesses — about half of the fact witnesses, and all but one non-expert — who would be traveling in from Europe. Putting to one side the issue of whether they could get into the United States at all — which just introduces additional uncertainty in a situation where no more is needed — Judge McMahon noted that they would have to arrive in New York by June 22 just so they could quarantine for two weeks before they would be allowed into the courthouse.

Thus, Judge McMahon determined that “given all the constraints, the witnesses should testify from where they reside. I will have read their directs and the expert reports. I 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.”

As for the attorneys, Judge McMahon stated that is was up to them whether they would prefer to cross examine remotely or from the courtroom.  However, Judge McMahon made clear that both sides needed to come to an agreement because the Court “will not have just one side’s lawyers in the courtroom.”  Judge McMahon did state that she also might consider having lead trial counsel come to court after all the witness testimony to have “a real bench trial closing argument,” but strongly discouraged bringing a lot of people to court for such a closing argument.

Judge McMahon then outlined some of the other procedures for trial, such as using a dedicated computer on which she can watch the testimony that will have no connection to the court’s secure intranet, shipping of sealed exhibit binders to witnesses, possibly having an attorney present with witnesses during their testimony, and not breaking exhibit seals or showing exhibits to witnesses prematurely.

In sum, this case is an example of a Court working as hard as it can to continue moving cases and trials forward in these difficult times as best as possible while still striving to ensure fairness in the process.