There was a time not long ago when parties resisting a remote deposition would argue that their deposition was “document heavy” and thus unsuitable for remote proceedings. As recently as 2016, a leading treatise on commercial litigation declared:
Business litigation is typically document-intensive, and the use of multiple documents at a remote deposition requires the questioner to decide on all the documents he will use (and their order) well in advance of the deposition. This is very limiting, as a good questioner will not adhere to a rigid outline, but will adjust his questions and their order to the responses of the deponent. (Business and Commercial Litigation in Federal Courts (4th ed.), Sec. 24:13 (Thomson West 2016)
In fact, the presence of large volumes of digital evidence signals to many litigators that the case would be better-managed online than in-person, where digital files will need to be printed, stored in boxes, marked by hand, and physically transported to multiple locations over the life of the litigation.
This view of remote depositions attracted support among some trial courts during the early days of the COVID-19 pandemic. However, it was eventually cast aside, as many courts and litigators learned through experience that remote technologies were actually a superior means of conducting depositions that involved large amounts of documents and exhibits. In one influential case, Rouviere v. Depuy Orthopaedics, Inc., 471 F. Supp. 3d 571 (S.D.N.Y. 2020), the court sorted through the various document-related arguments against remote depositions and concluded that so-called “document intensive” examinations are “not an obstacle to a successful remote videoconference deposition.”
Does the same argument for using remote technologies in depositions apply to remote trials as well? Is digital better for complex, document-heavy trials? Yes, apparently so.
Thanks to the development of purpose-built digital platforms for conducting legal proceedings and sharing electronic exhibits, and the litigation bar’s rapidly acquired expertise in online advocacy, the feeling is growing within the legal community that the “document-intensive” case is also a strong candidate for remote administration. In fact, the presence of large volumes of digital evidence signals to many litigators that the case would be better-managed online than in-person, where digital files will need to be printed, stored in boxes, marked by hand, and physically transported to multiple locations over the life of the litigation.
Just last month, the New York State Unified Court System’s Office of Court Administration opened a public comment period on a proposal to revise Supreme Court Commercial Division rules to encourage the use of “virtual evidence courtrooms” for commercial litigation. The proposal, advanced earlier this year by Commercial Division’s Advisory Council, is to add a new Rule 25-a to the Rules of the Commercial Division that specifically addresses — and encourages — the use of a virtual evidence courtroom (VEC) in business litigation.
Proposed Rule 25-a(a) would provide:
To promote the effective, efficient, and accessible management of trial evidence, the Commercial Division encourages the use of Virtual Evidence Courtrooms (VECs) for managing and presenting evidence during trials. VECs may be used to facilitate real-time access to trial exhibits and other relevant documents.
Elsewhere, proposed Rule 25-a(c) declares that “the use of a VEC is encouraged in cases that are particularly complex and document intensive.”
Drowning in documents? Remote technology to the rescue. A memorandum accompanying the rules change proposal contends that VECs offer these benefits to commercial litigants:
- Streamlined evidence management. Digital exhibits in the form of PDFs are stored in a single, shared location, indexed, and searchable by authorized parties. “This digitization saves substantial time during trials,” the memo states, “as exhibits can be immediately referenced on a laptop, with clear indications as to whether an exhibit has been admitted.”
- Enhanced pretrial efficiency. VECs facilitate the exchange of proposed exhibits ahead of trial. Armed with knowledge of the full scope of potential evidence, parties will be able to manage the litigation more efficiently. Proponents of VECs believe that judges and lawyers will be able to better estimate the time required for presenting evidence and calling witnesses, enabling more predictability in scheduling and efficiency at trial.
- Enhanced trial efficiency. With a VEC, attorneys and the court can easily locate exhibits for display to judge and jury.
- Improved post-trial briefing. Evidence admitted during the trial can be efficiently accessed and organized for use in post-trial motions and verdict analysis.
- Elevated practice of law. Wider use of VECs will “contribute to the Commercial Division’s reputation as a technologically advanced, premier venue for complex litigation,” according to rule change proponents.
Virtual evidence courtrooms have been available to New York litigants for several years. The technology provided is a web-based platform that has the capacity to organize, store, and share digital evidence materials in real time. The VEC can present documents to the court, parties, witnesses and a jury. Documents uploaded to a VEC are not considered to have been filed with the court, nor is the VEC part of the official court record. Documents uploaded to the VEC are accessible only to those individuals identified by the parties (i.e., not the general public). All communications are encrypted to preserve data security and confidentiality.
In New York state, “Supreme Courts” are trial courts. The New York Supreme Court’s Commercial Division was established in 1995, a first-in-the-nation business court intended to attract commercial disputes with the promise of judicial expertise in business matters and speedier case disposition times. Following New York’s example, specialized business courts have sprung up in many jurisdictions across the country; notably, in Cook County (Chicago), Ill., North Carolina, Delaware, New Jersey, California, Florida, Michigan, and Maryland.
Comments on the proposal are due Aug. 8, 2025.
