Confronting Your Accuser via ZOOM

by Dennis Crouch

Federal Courts have been delaying trials since March 2020. There have been a handful here and there – but not jury trials.

One patent case preparing for a jury trial before Judge Leonard Stark (D.Del) is Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, 2020 WL 3605623 (D. Del. July 2, 2020).  The lawsuit was filed back in 2017 alleging infringement of Sunoco’s patents for cutting its gasoline with cheaper butane. US9494948 and US9606548 (“continuous in-line blending of butane and petroleum”).

In a recent order, Judge Stark announced that he is moving forward with an in-person jury trial, albeit with a few exceptions.

[Read the Order: RemoteJuryTrialOrder

No face-to-face witness testimony. The key aspect of the order is that the trial will move forward without witnesses being in the court room.  Rather, testimony will be remote.  Although the defendants argued that they could not “receive a fair trial if all the witness examinations must be handled remotely,” Judge Stark concluded that “skilled trial counsel” will make it work.  “I expect that the jury will be given what it needs to make necessary factual findings, including credibility assessments.” Id.  Although not directly in the order, the witness testimony will presumably be via video.

Part of why the court did this was to avoid the politics of face coverings.

By excluding all witnesses from testifying in court, the Court will not confront the issue of whether to permit or require witnesses to testify with face coverings (or alternatively to prohibit witnesses from doing so).

In my opinion, avoiding the politics-of-masks is a horrible reason for the judge to make the call for remote testimony.  On the other hand, the court also gave a very sensible back-up reason:

Not having witnesses in the courtroom will also make it much easier to maintain social distancing in the courtroom and protect the health of those in the courtroom.

Id. In addition to no witness testimony, the court will also be closed except for 4-reps for the plaintiff and 3-reps for each defendant (including local counsel).  These are the total numbers for the whole trial (no swapping). The trial will be simulcast to video.  However, the court is only going to simulcast it to another courtroom and observers can attend there. Hopefully the video will be recorded.

Note on my title: The 6th Amendment of the U.S. Constitution includes a defendant’s right to “be confronted with the witnesses against him.” However, the provision is limited to “criminal prosecutions” not civil actions such as patent cases.

Thanks to Robert A. Matthews (https://www.matthewspatentlaw.com/) for directing me to the decision. 

11 thoughts on “Confronting Your Accuser via ZOOM

  1. 8

    Regarding Prof. Crouch’s comment about the right to be confronted with witnesses against you: he is right that the Sixth Amendment does not apply in civil cases, but a similar confrontation right has been found from time to time in due process, or to be inherent in cross-examination. One of the few articles on the subject is at: link to www-personal.umich.edu

  2. 7

    I don’t see this as anything having to do with the “politics” of face coverings. More like the issue of: not having a mask increases spread of COVID, but having a mask makes it harder for the jury to assess credibility.

  3. 6

    I think the approach to having all witness appear via live video feed without masks makes sense. Today, most people get so much more information via electronic media than in person. This approach is neutral and should present few problems in my view. What is more interesting to me is how the jury will be handled. If, as I suspect, the jurors will wear masks and be six feet apart from other jurors, that is going to impact juror cohesion. Over the course of any trial, the jurors get to know each other and bond to an extent. That building of relationships and sone cohesion is a big part of the deliberative process. It helps the jurors talk to each other, accept different perspectives. Etc. – not be strangers stating views. These deliberation will be different. – a group of Masked, socially-distant people who watched TV together but had little interaction will come together and decide the case. It will be interesting to see how that works

  4. 5

    The post is interesting but your reference to the “politics of face masks” is a sad reminder that idea of face masks should not have been made and is not political. When you go into the operating room and the doctors are wearing face masks so you don’t emerge infected, it’s science. During the Spanish Flu pandemic, face masks helped slow the spread. If face masks were encouraged and promoted consistently by the federal government, citizens from the start may have in all contexts worn them more as a habit. Without any negativity associated with them.

  5. 4

    Yet; is Zoom justice . . . still . . . justice?

    Is justice outside the courtroom . . . still . . . justice?

    The votes will be in soon enough.

    1. 4.1

      . . . and the face covering our pres needs isn’t mask, but a muzzle.

  6. 3

    Zoom witnesses at least seems better than the practice of someone reading the depositions of witnesses unavailable for trial in that district?

  7. 2

    Relatedly, E.D. Texas was going to force a full-blown in-court jury trial next week until the parties settled. link to news.bloomberglaw.com

    1. 2.1

      Setting pre-trial dates, trial dates, and venue transfer denials ASAP in WD TX [by a new former patent attorney judge there] was integral to a clever plan for plaintiffs to get discretionary IPR denials. But as WD TX suddenly gets very popular with plaintiffs for more lawsuits those rocket-docket dates will no longer be realistic for avoiding IPRs. Also, the PTAB has new guidelines for discretionary IPR denials on that basis.

  8. 1

    Are you sure the order refers to the politics of facemasks? I think one of the issues with witnesses in particular is that it’s harder for jurors to assess a witness’s demeanor if half their face is covered, and I suspect that’s what’s behind that statement in the order.

    I really hate the way some have made facemasks into a political issue, but I don’t think that’s what this order is referring to.

    1. 1.1

      I agree that the concern here was likely avoiding fights about whether the jury could make credibility determinations with face masks on, not the politics. Perhaps a secondary reason would be the need avoid the interaction between that concern and local executive orders.

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